ATWATER et al. v. CITY OF LAGO VISTA et al.

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318 OCTOBER TERM, 2000
Syllabus
ATWATER et al. v. CITY OF LAGO VISTA et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 99–1408. Argued December 4, 2000—Decided April 24, 2001
Texas law makes it a misdemeanor, punishable only by a fine, either for a
front-seat passenger in a car equipped with safety belts not to wear one
or for the driver to fail to secure any small child riding in front. The
warrantless arrest of anyone violating these provisions is expressly au-
thorized by statute, but the police may issue citations in lieu of arrest.
Petitioner Atwater drove her truck in Lago Vista, Texas, with her small
children in the front seat. None of them was wearing a seatbelt. Re-
spondent Turek, then a Lago Vista policeman, observed the seatbelt
violations, pulled Atwater over, verbally berated her, handcuffed her,
placed her in his squad car, and drove her to the local police station,
where she was made to remove her shoes, jewelry, and eyeglasses, and
empty her pockets. Officers took her “mug shot” and placed her, alone,
in a jail cell for about an hour, after which she was taken before a
magistrate and released on bond. She was charged with, among other
things, violating the seatbelt law. She pleaded no contest to the seat-
belt misdemeanors and paid a $50 fine. She and her husband (collec-
tively Atwater) filed suit under 42 U. S. C. § 1983, alleging, inter alia,
that the actions of respondents (collectively City) had violated her
Fourth Amendment right to be free from unreasonable seizure. Given
her admission that she had violated the law and the absence of any
allegation that she was harmed or detained in any way inconsistent with
the law, the District Court ruled the Fourth Amendment claim meritless
and granted the City summary judgment. Sitting en banc, the Fifth
Circuit affirmed. Relying on Whren v. United States, 517 U. S. 806,
817–818, the court observed that, although the Fourth Amendment gen-
erally requires a balancing of individual and governmental interests, the
result is rarely in doubt where an arrest is based on probable cause.
Because no one disputed that Turek had probable cause to arrest At-
water, and there was no evidence the arrest was conducted in an ex-
traordinary manner, unusually harmful to Atwater’s privacy interests,
the court held the arrest not unreasonable for Fourth Amendment
purposes.
Held: The Fourth Amendment does not forbid a warrantless arrest for a
minor criminal offense, such as a misdemeanor seatbelt violation punish-
able only by a fine. Pp. 326–355.

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(a) In reading the Fourth Amendment, the Court is guided by the
traditional protections against unreasonable searches and seizures af-
forded by the common law at the time of the framing. E. g., Wilson
v. Arkansas, 514 U. S. 927, 931. Atwater contends that founding-era
common-law rules forbade 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 this argument is not
insubstantial, it ultimately fails. Pp. 326–345.
(1) Even after making some allowance for variations in the pre-
founding English common-law usage of “breach of the peace,” the
founding-era common-law rules were not nearly as clear as Atwater
claims. Pp. 327–335.
(i) A review of the relevant English decisions, as well as English
and colonial American legal treatises, legal dictionaries, and procedure
manuals, demonstrates disagreement, not unanimity, with respect to of-
ficers’ warrantless misdemeanor arrest power. On one side, eminent
authorities support Atwater’s position that the common law confined
warrantless misdemeanor arrests to actual breaches of the peace. See,
e. g., Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349,
352. However, there is also considerable evidence of a broader con-
ception of common-law misdemeanor arrest authority unlimited by
any breach-of-the-peace condition. See, e. g., Holyday v. Oxenbridge,
Cro. Car. 234, 79 Eng. Rep. 805, 805–806; 2 M. Hale, Pleas of the Crown
88. Thus, the Court is not convinced that Atwater’s is the correct,
or even necessarily the better, reading of the common-law history.
Pp. 328–332.
(ii) A second, and equally serious, problem for Atwater’s histori-
cal argument is posed by various statutes enacted by Parliament well
before this Republic’s founding that authorized peace officers (and even
private persons) to make warrantless arrests for all sorts of relatively
minor offenses unaccompanied by violence, including, among others,
nightwalking, unlawful game playing, profane cursing, and negligent
carriage driving. Pp. 333–335.
(2) An examination of specifically American evidence is to the same
effect. Neither the history of the framing era nor subsequent legal de-
velopment indicates that the Fourth Amendment was originally under-
stood, or has traditionally been read, to embrace Atwater’s position.
Pp. 336–345.
(i) Atwater has cited no particular evidence that those who
framed and ratified the Fourth Amendment sought to limit peace offi-
cers’ warrantless misdemeanor arrest authority to instances of actual
breach of the peace, and the Court’s review of framing-era documentary

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320 ATWATER v. LAGO VISTA
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history has likewise failed to reveal any such design. Nor is there in
any of the modern historical accounts of the Fourth Amendment’s adop-
tion any substantial indication that the Framers intended such a restric-
tion. Indeed, to the extent the modern histories address the issue,
their conclusions are to the contrary. The evidence of actual practice
also counsels against Atwater’s position. During the period leading up
to and surrounding the framing of the Bill of Rights, colonial and state
legislatures, like Parliament before them, regularly authorized local of-
ficers to make warrantless misdemeanor arrests without a breach of the
peace condition. That the Fourth Amendment did not originally apply
to the States does not make state practice irrelevant in unearthing
the Amendment’s original meaning. A number of state constitutional
search-and-seizure provisions served as models for the Fourth Amend-
ment, and the fact that many of the original States with such constitu-
tional limitations continued to grant their officers broad warrantless
misdemeanor arrest authority undermines Atwater’s position. Given
the early state practice, it is likewise troublesome for Atwater’s view
that one year after the Fourth Amendment’s ratification, Congress gave
federal marshals the same powers to execute federal law as sheriffs had
to execute state law. Pp. 336–340.
(ii) Nor is Atwater’s argument from tradition aided by the histor-
ical 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. E. g., Wilson, supra, at 933. The story, in fact, is to
the contrary. First, what little this Court has said about warrantless
misdemeanor arrest authority tends to cut against Atwater’s argument.
See, e. g., United States v. Watson, 423 U. S. 411, 418. Second, this is
not a case in which early American courts embraced an accepted
common-law rule with anything approaching unanimity. See Wilson,
supra, at 933. None of the 19th-century state-court decisions cited by
Atwater is ultimately availing. More to the point are the numerous
19th-century state decisions expressly sustaining (often against consti-
tutional challenge) state and local laws authorizing peace officers to
make warrantless arrests for misdemeanors not involving any breach of
the peace. Finally, legal commentary, for more than a century, has al-
most uniformly recognized the constitutionality of extending warrant-
less arrest power to misdemeanors without limitation to breaches of the
peace. Small wonder, then, that today statutes in all 50 States and the
District of Columbia permit such arrests by at least some (if not all)
peace officers, as do a host of congressional enactments. Pp. 340–345.
(b) The Court rejects Atwater’s request to mint a new rule of consti-
tutional law forbidding custodial arrest, even upon probable cause, when
conviction could not ultimately carry any jail time and the government

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can show no compelling need for immediate detention. She reasons
that, when historical practice fails to speak conclusively to a Fourth
Amendment claim, courts must strike a current balance between indi-
vidual and societal interests by subjecting particular contemporary cir-
cumstances to traditional standards of reasonableness. See, e. g., Wyo-
ming v. Houghton, 526 U. S. 295, 299–300. Atwater might well prevail
under a rule derived exclusively to address the uncontested facts of her
case, since her claim to live free of pointless indignity and confinement
clearly outweighs anything the City can raise against it specific to her.
However, the Court has 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. See, e. g., United States v. Robinson, 414 U. S.
218, 234–235. Complications arise the moment consideration is given
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. The assertion that these difficulties could be
alleviated simply by requiring police in doubt not to arrest is unavailing
because, first, such a tie breaker would in practice amount to a constitu-
tionally inappropriate least-restrictive-alternative limitation, see, e. g.,
Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 629, n. 9,
and, second, whatever guidance the tie breaker might give would come
at the price of a systematic disincentive to arrest in situations where
even Atwater concedes arresting would serve an important societal in-
terest. That warrantless misdemeanor arrests do not demand the con-
stitutional attention Atwater seeks is indicated by a number of factors,
including that the law has never jelled the way Atwater would have it;
that anyone arrested without formal process is entitled to a magistrate’s
review of probable cause within 48 hours, County of Riverside v. Mc-
Laughlin, 500 U. S. 44, 55–58; that many jurisdictions have chosen to
impose more restrictive safeguards through statutes limiting warrant-
less arrests for minor offenses; that it is in the police’s interest to limit
such arrests, which carry costs too great to incur without good reason;
and that, under current doctrine, the preference for categorical treat-
ment 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, unusu-
ally harmful to his privacy or physical interests, e. g., Whren, 517 U. S.,
at 818. The upshot of all these influences, combined with the good
sense (and, failing that, the political accountability) of most local law-
makers and peace officers, is a dearth of horribles demanding redress.
Thus, the probable-cause standard applies to all arrests, without the

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322 ATWATER v. LAGO VISTA
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need to balance the interests and circumstances involved in particular
situations. Dunaway v. New York, 442 U. S. 200, 208. An officer may
arrest an individual without violating the Fourth Amendment if there
is probable cause to believe that the offender has committed even a very
minor criminal offense in the officer’s presence. Pp. 345–354.
(c) Atwater’s arrest satisfied constitutional requirements. It is un-
disputed that Turek had probable cause to believe that Atwater com-
mitted a crime in his presence. Because she admits that neither she
nor her children were wearing seatbelts, Turek was authorized (though
not required) to make a custodial arrest without balancing costs and
benefits or determining whether Atwater’s arrest was in some sense
necessary. Nor was the arrest made in an extraordinary manner, un-
usually harmful to her privacy or physical interests. See Whren, 517
U. S., at 818. Whether a search or seizure is “extraordinary” turns,
above all else, on the manner in which it is executed. See, e. g., ibid.
Atwater’s arrest and subsequent booking, though surely humiliating,
were no more harmful to her interests than the normal custodial ar-
rest. Pp. 354–355.
195 F. 3d 242, affirmed.
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Kennedy, and Thomas, JJ., joined. O’Connor, J., filed
a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ.,
joined, post, p. 360.
Robert C. DeCarli argued the cause for petitioners. With
him on the briefs were Debra Irwin, Pamela McGraw, and
Michael F. Sturley.
R. James George, Jr., argued the cause for respondents.
With him on the brief were William W. Krueger III and
Joanna R. Lippman.
Gregory S. Coleman, Solicitor General of Texas, argued
the cause for the State of Texas et al. as amici curiae urging
affirmance. With him on the brief were John Cornyn, At-
torney General, Andy Taylor, First Assistant Attorney Gen-
eral, and Lisa R. Eskow, Assistant Attorney General, and
the Attorneys General for their respective States as follows:
Mark Pryor of Arkansas, Ken Salazar of Colorado, M. Jane
Brady of Delaware, Carla J. Stovall of Kansas, J. Joseph
Curran, Jr., of Maryland, Joseph P. Mazurek of Montana,

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Opinion of the Court
W. A. Drew Edmondson of Oklahoma, Charles M. Condon of
South Carolina, and Mark L. Earley of Virginia.*
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.
I
A
In Texas, if a car is equipped with safety belts, a front-
seat passenger must wear one, Tex. Transp. Code Ann.
§ 545.413(a) (1999), and the driver must secure any small
child riding in front, § 545.413(b). Violation of either provi-
sion is “a misdemeanor punishable by a fine not less than
$25 or more than $50.” § 545.413(d). Texas law expressly
authorizes “[a]ny peace officer [to] arrest without warrant a
person found committing a violation” of these seatbelt laws,
§ 543.001, although it permits police to issue citations in lieu
of arrest, §§ 543.003–543.005.
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
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by Susan N. Herman and Steven R. Shapiro;
for Americans for Effective Law Enforcement, Inc., by Wayne W. Schmidt,
James P. Manak, and Bernard J. Farber; for the Cato Institute by Timo-
thy Lynch; for the Institute on Criminal Justice at the University of Min-
nesota Law School et al. by Richard S. Frase; for the National Association
of Criminal Defense Lawyers et al. by Wesley MacNeil Oliver and Joshua
Dratel; and for the Texas Criminal Defense Lawyers Association by Greg
Westfall and William S. Harris.
Briefs of amici curiae urging affirmance were filed for the United
States by Solicitor General Waxman, Assistant Attorney General Robin-
son, Deputy Solicitor General Dreeben, and Patricia A. Millett; for the
National League of Cities et al. by Richard Ruda and James I. Crowley;
and for the Texas Police Chiefs Association by James McLaughlin, Jr.

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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]” some-
thing to the effect of “[w]e’ve met before” and “[y]ou’re going
to jail.” App. 20.1 He then called for backup and asked to
see Atwater’s driver’s license and insurance documentation,
which state law required her to carry. Tex. Transp. Code
Ann. §§ 521.025, 601.053 (1999). 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.” App. 21.
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.” Ibid. As it turned out, At-
water’s friend learned what was going on and soon arrived
to take charge of the children. Turek then handcuffed At-
water, 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. Of-
ficers 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 seat-
belt offenses and paid a $50 fine; the other charges were
dismissed.
1 Turek had previously stopped Atwater for what he had thought was a
seatbelt violation, but had realized that Atwater’s son, although seated on
the vehicle’s armrest, was in fact belted in. Atwater acknowledged that
her son’s seating position was unsafe, and Turek issued a verbal warning.
See Record 379.

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B
Atwater and her husband, petitioner Michael Haas, filed
suit in a Texas state court under 42 U. S. C. § 1983 against
Turek and respondents City of Lago Vista and Chief of Po-
lice 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 Amend-
ment “right to be free from unreasonable seizure,” App. 23,
and sought compensatory and punitive damages.
The City removed the suit to the United States District
Court for the Western District of Texas. Given Atwater’s
admission that she had “violated the law” and the absence of
any allegation “that she was harmed or detained in any way
inconsistent with the law,” the District Court ruled the
Fourth Amendment claim “meritless” and granted the City’s
summary judgment motion. No. A–97 CA 679 SS (WD Tex.,
Feb. 13, 1999), App. to Pet. for Cert. 50a–63a. A panel of
the United States Court of Appeals for the Fifth Circuit re-
versed. 165 F. 3d 380 (1999). It concluded that “an arrest
for a first-time seat belt offense” was an unreasonable seizure
within the meaning of the Fourth Amendment, id., at 387,
and held that Turek was not entitled to qualified immunity,
id., at 389.
Sitting en banc, the Court of Appeals vacated the panel’s
decision and affirmed the District Court’s summary judg-
ment for the City. 195 F. 3d 242 (CA5 1999). Relying on
Whren v. United States, 517 U. S. 806 (1996), the en banc
court observed that, although the Fourth Amendment gener-
ally requires a balancing of individual and governmental in-
terests, where “an arrest is based on probable cause then
‘with rare exceptions . . . the result of that balancing is not
in doubt.’ ” 195 F. 3d, at 244 (quoting Whren, supra, at 817).
Because “[n]either party dispute[d] that Officer Turek had
probable cause to arrest Atwater,” and because “there [was]
no evidence in the record that Officer Turek conducted the
arrest in an ‘extraordinary manner, unusually harmful’ to At-

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water’s privacy interests,” the en banc court held that the
arrest was not unreasonable for Fourth Amendment pur-
poses. 195 F. 3d, at 245–246 (quoting Whren, supra, at 818).
Three judges issued dissenting opinions. On the under-
standing that citation is the “usual procedure” in a traffic
stop situation, Judge Reynaldo Garza thought Atwater’s
arrest unreasonable, since there was no particular reason
for taking her into custody. 195 F. 3d, at 246–247. Judge
Weiner likewise believed that “even with probable cause, [an]
officer must have a plausible, articulable reason” for making
a custodial arrest. Id., at 251. Judge Dennis understood
the Fourth Amendment to have incorporated an earlier,
common-law prohibition on warrantless arrests for misde-
meanors that do not amount to or involve a “breach of the
peace.” Ibid.
We granted certiorari to consider whether the Fourth
Amendment, either by incorporating common-law restric-
tions on misdemeanor arrests or otherwise, limits police of-
ficers’ authority to arrest without warrant for minor criminal
offenses. 530 U. S. 1260 (2000). We now affirm.
II
The Fourth Amendment safeguards “[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” In reading
the Amendment, we are guided by “the traditional protec-
tions against unreasonable searches and seizures afforded by
the common law at the time of the framing,” Wilson v. Ar-
kansas, 514 U. S. 927, 931 (1995), since “[a]n examination of
the common-law understanding of an officer’s authority to
arrest sheds light on the obviously relevant, if not entirely
dispositive, consideration of what the Framers of the Amend-
ment might have thought to be reasonable,” Payton v. New
York, 445 U. S. 573, 591 (1980) (footnote omitted). Thus, the
first step here is to assess Atwater’s claim that peace officers’
authority to make warrantless arrests for misdemeanors was

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restricted at common law (whether “common law” is under-
stood strictly as law judicially derived or, instead, as the
whole body of law extant at the time of the framing). At-
water’s specific contention is that “founding-era common-law
rules” forbade peace officers to make warrantless misde-
meanor arrests except in cases of “breach of the peace,” a
category she claims was then understood narrowly as cov-
ering only those nonfelony offenses “involving or tending
toward violence.” Brief for Petitioners 13. Although her
historical argument is by no means insubstantial, it ulti-
mately fails.
A
We begin with the state of pre-founding English common
law and find that, even after making some allowance for vari-
ations in the common-law usage of the term “breach of the
peace,” 2 the “founding-era common-law rules” were not
2 The term apparently meant very different things in different common-
law contexts. For instance, under a statute enacted during the reign of
Charles II forbidding service of any warrant or other court process on
Sunday “except in cases of treason, felony or breach of the peace,” 29 Car.
II, ch. 7, § 6, 8 Statutes at Large 414 (1676), “it was held that every indict-
able offense was constructively a breach of the peace,” Wilgus, Arrest
Without a Warrant, 22 Mich. L. Rev. 541, 574 (1924); see also Ex parte
Whitchurch, 1 Atk. 56, 58, 26 Eng. Rep. 37, 39 (Ch. 1749). The term car-
ried a similarly broad meaning when employed to define the jurisdiction
of justices of the peace, see 2 W. Hawkins, Pleas of the Crown, ch. 8,
§ 38, p. 60 (6th ed. 1787) (hereinafter Hawkins), or to delimit the scope of
parliamentary privilege, see Williamson v. United States, 207 U. S. 425,
435–446 (1908) (discussing common-law origins of Arrest Clause, U. S.
Const., Art. I, § 6, cl. 1).
Even when used to describe common-law arrest authority, the term’s
precise import is not altogether clear. See J. Turner, Kenny’s Outlines of
Criminal Law § 695, p. 537 (17th ed. 1958) (“Strangely enough what consti-
tutes a ‘breach of the peace’ has not been authoritatively laid down”); G.
Williams, Arrest for Breach of the Peace, 1954 Crim. L. Rev. 578, 578–579
(“The expression ‘breach of the peace’ seems clearer than it is and there
is a surprising lack of authoritative definition of what one would suppose
to be a fundamental concept in criminal law”); Wilgus, supra, at 573
(“What constitutes a breach of peace is not entirely certain”). More often

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nearly as clear as Atwater claims; on the contrary, the
common-law commentators (as well as the sparsely reported
cases) reached divergent conclusions with respect to officers’
warrantless misdemeanor arrest power. Moreover, in the
years leading up to American independence, Parliament re-
peatedly extended express warrantless arrest authority to
cover misdemeanor-level offenses not amounting to or involv-
ing any violent breach of the peace.
1
Atwater’s historical argument begins with our quotation
from Halsbury in Carroll v. United States, 267 U. S. 132
(1925), that
“ ‘[i]n cases of misdemeanor, a peace officer like a pri-
vate person has at common law no power of arresting
without a warrant except when a breach of the peace
has been committed in his presence or there is reason-
able ground for supposing that a breach of peace is about
to be committed or renewed in his presence.’ ” Id., at
157 (quoting 9 Halsbury, Laws of England § 612, p. 299
(1909)).
than not, when used in reference to common-law arrest power, the term
seemed to connote an element of violence. See, e. g., M. Dalton, Country
Justice, ch. 3, p. 9 (1727) (“The Breach of th[e] Peace seemeth to be any
injurious Force or Violence moved against the Person of another, his
Goods, Lands, or other Possessions, whether by threatening words, or by
furious Gesture, or Force of the Body, or any other Force used in ter-
rorem”). On occasion, however, common-law commentators included in
their descriptions of breaches of the peace offenses that do not necessarily
involve violence or a threat thereof. See M. Hale, A Methodical Summary
of the Principal Matters Relating to the Pleas of the Crown *134 (7th ed.
1773) (“Barretries”); 4 W. Blackstone, Commentaries on the Laws of Eng-
land 149 (1769) (hereinafter Blackstone) (“[s]preading false news”). For
purposes of this case, it is unnecessary to reach a definitive resolution of
the uncertainty. As stated in the text, we will assume that as used in
the context of common-law arrest, the phrase “breach of the peace” was
understood narrowly, as entailing at least a threat of violence.

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But the isolated quotation tends to mislead. In Carroll it-
self we spoke of the common-law rule as only “sometimes
expressed” that way, 267 U. S., at 157, and, indeed, in the
very same paragraph, we conspicuously omitted any refer-
ence to a breach-of-the-peace limitation in stating that the
“usual rule” at common law was that “a police officer [could]
arrest without warrant . . . one guilty of a misdemeanor if
committed in his presence.” Id., at 156–157. Thus, what
Carroll illustrates, and what others have recognized, is that
statements about the common law of warrantless misde-
meanor arrest simply are not uniform. Rather, “[a]t com-
mon law there is a difference of opinion among the authori-
ties as to whether this right to arrest [without a warrant]
extends to all misdemeanors.” American Law Institute,
Code of Criminal Procedure, Commentary to § 21, p. 231
(1930).
On one side of the divide there are certainly eminent au-
thorities supporting Atwater’s position. In addition to Lord
Halsbury, quoted in Carroll, James Fitzjames Stephen and
Glanville Williams both seemed to indicate that the common
law confined warrantless misdemeanor arrests to actual
breaches of the peace. See 1 J. Stephen, A History of the
Criminal Law of England 193 (1883) (“The common law did
not authorise the arrest of persons guilty or suspected of
misdemeanours, except in cases of an actual breach of the
peace either by an affray or by violence to an individual”);
G. Williams, Arrest for Breach of the Peace, 1954 Crim.
L. Rev. 578, 578 (“Apart from arrest for felony . . . , the only
power of arrest at common law is in respect of breach of the
peace”). See also Queen v. Tooley, 2 Ld. Raym. 1296, 1301,
92 Eng. Rep. 349, 352 (Q. B. 1710) (“[A] constable cannot ar-
rest, but when he sees an actual breach of the peace; and if
the affray be over, he cannot arrest”).
Sir William Blackstone and Sir Edward East might also be
counted on Atwater’s side, although they spoke only to the
sufficiency of breach of the peace as a condition to warrant-

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less misdemeanor arrest, not to its necessity. Blackstone
recognized that at common law “[t]he constable . . . hath
great original and inherent authority with regard to ar-
rests,” but with respect to nonfelony offenses said only that
“[h]e may, without warrant, arrest any one for a breach of
the peace, and carry him before a justice of the peace.” 4
Blackstone 289. Not long after the framing of the Fourth
Amendment, East characterized peace officers’ common-law
arrest power in much the same way: “A constable or other
known conservator of the peace may lawfully interpose upon
his own view to prevent a breach of the peace, or to quiet an
affray . . . .” 1 E. East, Pleas of the Crown § 71, p. 303
(1803).
The great commentators were not unanimous, however,
and there is also considerable evidence of a broader concep-
tion of common-law misdemeanor arrest authority unlimited
by any breach-of-the-peace condition. Sir Matthew Hale,
Chief Justice of King’s Bench from 1671 to 1676,3 wrote in
his History of the Pleas of the Crown that, by his “original
and inherent power,” a constable could arrest without a war-
rant “for breach of the peace and some misdemeanors, less
than felony.” 2 M. Hale, Pleas of the Crown 88 (1736).
Hale’s view, posthumously published in 1736, reflected an
understanding dating back at least 60 years before the ap-
pearance of his Pleas yet sufficiently authoritative to sustain
a momentum extending well beyond the framing era in
this country. See The Compleat Parish-Officer 11 (1744)
(“[T]he Constable . . . may for Breach of the Peace, and
some Misdemeanors less than Felony, imprison a Man”);
R. Burn, The Justice of the Peace 271 (1837) (“A constable . . .
may at common law, for treason, felony, breach of the peace,
and some misdemeanors less than felony, committed in
his view, apprehend the supposed offender without any
warrant” (italics in original)); 1 J. Chitty, A Practical
3 E. Foss, The Judges of England 113 (1864).

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Treatise on the Criminal Law 20 (5th ed. 1847) (“[A consta-
ble] may for treason, felony, breach of the peace, and some
misdemeanors less than felony, committed in his view, appre-
hend the supposed offender virtiute officii, without any war-
rant”); 1 W. Russell, Crimes and Misdemeanors 725 (7th ed.
1909) (officer “may arrest any person who in his presence
commits a misdemeanor or breach of the peace”).4
As will be seen later, the view of warrantless arrest au-
thority as extending to at least “some misdemeanors” beyond
breaches of the peace was undoubtedly informed by statu-
tory provisions authorizing such arrests, but it reflected com-
mon law in the strict, judge-made sense as well, for such was
the holding of at least one case reported before Hale had
even become a judge but which, like Hale’s own commentary,
continued to be cited well after the ratification of the Fourth
Amendment. In Holyday v. Oxenbridge, Cro. Car. 234, 79
Eng. Rep. 805 (1631), the Court of King’s Bench held that
even a private person (and thus a fortiori a peace officer 5 )
needed no warrant to arrest a “common cheater” whom he
discovered “cozen[ing] with false dice.” The court expressly
rejected the contention that warrantless arrests were im-
proper “unless in felony,” and said instead that “there was
good cause [for] staying” the gambler and, more broadly,
that “it is pro bono publico to stay such offenders.” Id.,
at 805–806. In the edition nearest to the date of the Con-
stitution’s framing, Sergeant William Hawkins’s widely
read Treatise of the Pleas of the Crown generalized from
Holyday that “from the reason of this case it seems to follow,
4 Cf. E. Trotter, Seventeenth Century Life in the Country Parish: With
Special Reference to Local Government 88 (1919) (describing broad au-
thority of local constables and concluding that, “[i]n short, the constable
must apprehend, take charge of and present for trial all persons who broke
the laws, written or unwritten, against the King’s peace or against the
statutes of the realm . . .”).
5 See 2 Hawkins, ch. 13, § 1, at 129 (“[W]herever any [warrantless] arrest
may be justified by a private person, in every such case a` fortiori it may
be justified by any [peace] officer”).

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That the [warrantless] arrest of any other offenders . . . for
offences in like manner scandalous and prejudicial to the
public, may be justified.” 2 Hawkins, ch. 12, § 20, at 122. A
number of other common-law commentaries shared Haw-
kins’s broad reading of Holyday. See The Law of Arrests
205 (2d ed. 1753) (In light of Holyday, “an Arrest of an
Offender . . . for any Crime prejudicial to the Publick, seems
to be justifiable”); 1 T. Cunningham, A New and Complete
Law Dictionary (1771) (definition of “arrest”) (same); 1 G.
Jacob, The Law Dictionary 129 (1st Am. ed. 1811) (same).
See generally C. Greaves, Law of Arrest Without a Warrant,
in The Criminal Law Consolidation Acts, p. lxiii (1870)
(“[Holyday] is rested upon the broad ground that ‘it is pro
bono publico to stay such offenders,’ which is equally appli-
cable to every case of misdemeanor . . . ”).6
We thus find disagreement, not unanimity, among both the
common-law jurists and the text writers who sought to pull
the cases together and summarize accepted practice. Hav-
ing reviewed the relevant English decisions, as well as Eng-
lish 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, read-
ing of the common-law history.
6 King v. Wilkes, 2 Wils. K. B. 151, 95 Eng. Rep. 737 (1763), and Money
v. Leach, 3 Burr. 1742, 97 Eng. Rep. 1075 (K. B. 1765), two of the decisions
arising out of the controversy that generated Wilkes v. Wood, Lofft 1,
98 Eng. Rep. 489 (C. P. 1763), the “paradigm search and seizure case for
Americans” of the founding generation, Amar, Fourth Amendment First
Principles, 107 Harv. L. Rev. 757, 772 (1994), also contain dicta suggesting
a somewhat broader conception of common-law arrest power than the one
Atwater advances. See, e. g., King v. Wilkes, supra, at 158, 95 Eng. Rep.,
at 741 (“[I]f a crime be done in his sight,” a justice of the peace “may
commit the criminal upon the spot”); Money v. Leach, supra, at 1766, 97
Eng. Rep., at 1088 (“The common law, in many cases, gives authority
to arrest without a warrant; more especially, where taken in the very
act . . .”).

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2
A second, and equally serious, problem for Atwater’s his-
torical argument is posed by the “divers Statutes,” M. Dal-
ton, Country Justice, ch. 170, § 4, p. 582 (1727), enacted by
Parliament well before this Republic’s founding that author-
ized warrantless misdemeanor arrests without reference to
violence or turmoil. Quite apart from Hale and Blackstone,
the legal background of any conception of reasonableness
the Fourth Amendment’s Framers might have entertained
would have included English statutes, some centuries old,
authorizing peace officers (and even private persons) to make
warrantless arrests for all sorts of relatively minor offenses
unaccompanied by violence. The so-called “nightwalker”
statutes are perhaps the most notable examples. From the
enactment of the Statute of Winchester in 1285, through its
various readoptions and until its repeal in 1827,7 night watch-
men were authorized and charged “as . . . in Times past” to
“watch the Town continually all Night, from the Sun-setting
unto the Sun-rising” and were directed that “if any Stranger
do pass by them, he shall be arrested until Morning . . . .”
13 Edw. I, ch. 4, §§ 5–6, 1 Statutes at Large 232–233; see also
5 Edw. III, ch. 14, 1 Statutes at Large 448 (1331) (confirming
and extending the powers of watchmen). Hawkins empha-
sized that the Statute of Winchester “was made” not in dero-
gation but rather “in affirmance of the common law,” for
“every private person may by the common law arrest any
suspicious night-walker, and detain him till he give good ac-
count of himself . . . .” 2 Hawkins, ch. 13, § 6, at 130. And
according to Blackstone, these watchmen had virtually limit-
less warrantless nighttime arrest power: “Watchmen, either
those appointed by the statute of Winchester . . . or such as
are mere assistants to the constable, may virtute officii ar-
rest all offenders, and particularly nightwalkers, and commit
them to custody till the morning.” 4 Blackstone 289; see
7 7 & 8 Geo. IV, ch. 27, 67 Statutes at Large 153.

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also 2 Hale, Pleas of the Crown, at 97 (describing broad ar-
rest powers of watchmen even over and above those con-
ferred by the Statute of Winchester).8 The Statute of Win-
chester, moreover, empowered peace officers not only to deal
with nightwalkers and other nighttime “offenders,” but peri-
odically to “make Inquiry of all Persons being lodged in the
Suburbs, or in foreign Places of the Towns.” On that score,
the Statute provided that “if they do find any that have
lodged or received any Strangers or suspicious Person,
against the Peace, the Bailiffs shall do Righttherein,” 13
Edw. I, ch. 4, §§ 3–4, 1 Statutes at Large 232–233, which
Hawkins understood “surely” to mean that officers could
“lawfully arrest and detain any such stranger[s],” 2 Hawkins,
ch. 13, § 12, at 134.
Nor were the nightwalker statutes the only legislative
sources of warrantless arrest authority absent real or threat-
ened violence, as the parties and their amici here seem to
have assumed. On the contrary, following the Edwardian
legislation and throughout the period leading up to the fram-
ing, Parliament repeatedly extended warrantless arrest
power to cover misdemeanor-level offenses not involving any
breach of the peace. One 16th-century statute, for instance,
authorized peace officers to arrest persons playing “unlawful
game[s]” like bowling, tennis, dice, and cards, and for good
measure extended the authority beyond players to include
persons “haunting” the “houses, places and alleys where
such games shall be suspected to be holden, exercised, used
8 Atwater seeks to distinguish the nightwalker statutes by arguing that
they “just reflected the reasonable notion that, in an age before lighting,
finding a person walking about in the dead of night equaled probable suspi-
cion that the person was a felon.” Reply Brief for Petitioners 7, n. 6.
Hale indicates, however, that nightwalkers and felons were not considered
to be one and the same. 2 Hale, Pleas of the Crown, at 97 (“And such a
watchman may apprehend night-walkers and commit them to custody till
the morning, and also felons and persons suspected of felony”).

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or occupied.” 33 Hen. VIII, ch. 9, §§ 11–16, 5 Statutes at
Large 84–85 (1541). A 17th-century act empowered “any
person . . . whatsoever to seize and detain any . . . hawker,
pedlar, petty chapman, or other trading person” found selling
without a license. 8 & 9 Wm. III, ch. 25, §§ 3, 8, 10 Statutes
at Large 81–83 (1697). And 18th-century statutes author-
ized the warrantless arrest of “rogues, vagabonds, beggars,
and other idle and disorderly persons” (defined broadly to
include jugglers, palm readers, and unlicensed play actors),
17 Geo. II, ch. 5, §§ 1–2, 5, 18 Statutes at Large 144, 145–147
(1744); “horrid” persons who “profanely swear or curse,” 19
Geo. II, ch. 21, § 3, 18 Statutes at Large 445 (1746); individu-
als obstructing “publick streets, lanes or open passages” with
“pipes, butts, barrels, casks or other vessels” or an “empty
cart, car, dray or other carriage,” 30 Geo. II, ch. 22, §§ 5, 13,
22 Statutes at Large 107–108, 111 (1757); and, most signifi-
cantly of all given the circumstances of the case before us,
negligent carriage drivers, 27 Geo. II, ch. 16, § 7, 21 Statutes
at Large 188 (1754). See generally S. Blackerby, The Jus-
tice of Peace: His Companion, or a Summary of all the Acts
of Parliament (1723) (cataloguing statutes); S. Welch, An
Essay on the Office of Constable 19–22 (1758) (describing
same).
The significance of these early English statutes lies not
in proving that any common-law rule barring warrantless
misdemeanor arrests that might have existed would have
been subject to statutory override; the sovereign Parlia-
ment could of course have wiped away any judge-made rule.
The point is that the statutes riddle Atwater’s supposed
common-law rule with enough exceptions to unsettle any
contention that the law of the mother country would have
left the Fourth Amendment’s Framers of a view that it
would necessarily have been unreasonable to arrest without
warrant for a misdemeanor unaccompanied by real or threat-
ened violence.

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B
An examination of specifically American evidence is to the
same effect. Neither the history of the framing era nor sub-
sequent legal development indicates that the Fourth Amend-
ment was originally understood, or has traditionally been
read, to embrace Atwater’s position.
1
To begin with, Atwater has cited no particular evidence
that those who framed and ratified the Fourth Amendment
sought to limit peace officers’ warrantless misdemeanor ar-
rest authority to instances of actual breach of the peace, and
our own review of the recent and respected compilations of
framing-era documentary history has likewise failed to re-
veal any such design. See The Complete Bill of Rights 223–
263 (N. Cogan ed. 1997) (collecting original sources); 5 The
Founders’ Constitution 219–244 (P. Kurland & R. Lerner eds.
1987) (same). Nor have we found in any of the modern his-
torical accounts of the Fourth Amendment’s adoption any
substantial indication that the Framers intended such a re-
striction. See, e. g., L. Levy, Origins of the Bill of Rights
150–179 (1999); T. Taylor, Two Studies in Constitutional In-
terpretation 19–93 (1969); J. Landynski, Search and Seizure
and the Supreme Court 19–48 (1966); N. Lasson, History and
Development of the Fourth Amendment to the United States
Constitution 79–105 (1937); Davies, Recovering the Original
Fourth Amendment, 98 Mich. L. Rev. 547 (1999); Amar,
Fourth Amendment First Principles, 107 Harv. L. Rev. 757
(1994); Bradley, Constitutional Theory of the Fourth Amend-
ment, 38 DePaul L. Rev. 817 (1989). Indeed, to the extent
these modern histories address the issue, their conclusions
are to the contrary. See Landynski, supra, at 45 (Fourth
Amendment arrest rules are “based on common-law prac-
tice,” which “dispensed with” a warrant requirement for mis-
demeanors “committed in the presence of the arresting offi-
cer”); Davies, supra, at 551 (“[T]he Framers did not address

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warrantless intrusions at all in the Fourth Amendment or in
the earlier state provisions; thus, they never anticipated that
‘unreasonable’ might be read as a standard for warrantless
intrusions”).
The evidence of actual practice also counsels against At-
water’s position. During the period leading up to and sur-
rounding the framing of the Bill of Rights, colonial and state
legislatures, like Parliament before them, supra, at 333–335,
regularly authorized local peace officers to make warrantless
misdemeanor arrests without conditioning statutory author-
ity on breach of the peace. See, e. g., First Laws of the State
of Connecticut 214–215 (Cushing ed. 1982) (1784 compilation;
exact date of Act unknown) (authorizing warrantless arrests
of “all Persons unnecessarily travelling on the Sabbath or
Lord’s Day”); id., at 23 (“such as are guilty of Drunkenness,
profane Swearing, Sabbath-breaking, also vagrant Persons
[and] unseasonable Night-walkers”); Digest of the Laws of
the State of Georgia 1755–1800, p. 411 (H. Marbury & W.
Crawford eds. 1802) (1762 Act) (breakers of the Sabbath
laws); id., at 252 (1764 Act) (persons “gaming . . . in any
licensed public house, or other house selling liquors”); Co-
lonial Laws of Massachusetts 139 (1889) (1646 Act) (“such
as are overtaken with drink, swearing, Sabbath breaking,
Lying, vagrant persons, [and] night-walkers”); Laws of the
State of New Hampshire 549 (1800) (1799 Act) (persons
“travelling unnecessarily” on Sunday); Digest of the Laws of
New Jersey 1709–1838, pp. 585–586 (L. Elmer ed. 1838) (1799
Act) (“vagrants or vagabonds, common drunkards, common
night-walkers, and common prostitutes,” as well as fortune-
tellers and other practitioners of “crafty science”); Laws of
the State of New York, 1777–1784, pp. 358–359 (1886) (1781
Act) (“hawker[s]” and “pedlar[s]”); Earliest Printed Laws of
New York, 1665–1693, p. 133 (J. Cushing ed. 1978) (Duke of
York’s Laws, 1665–1675) (“such as are overtaken with Drink,
Swearing, Sabbath breaking, Vagrant persons or night walk-
ers”); 3 Laws of the Commonwealth of Pennsylvania 177–183

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(1810) (1794 Act) (persons “profanely curs[ing],” drinking
excessively, “cock-fighting,” or “play[ing] at cards, dice,
billiards, bowls, shuffle-boards, or any game of hazard or
address, for money”).9
What we have here, then, is just the opposite of what
we had in Wilson v. Arkansas. There, we emphasized that
during the founding era a number of States had “enacted
statutes specifically embracing” the common-law knock-and-
announce rule, 514 U. S., at 933; here, by contrast, those very
same States passed laws extending warrantless arrest au-
thority to a host of nonviolent misdemeanors, and in so doing
acted very much inconsistently with Atwater’s claims about
the Fourth Amendment’s object. Of course, the Fourth
9 Given these early colonial and state laws, the fact that a number of
States that ratified the Fourth Amendment generally incorporated
common-law principles into their own constitutions or statutes, see Wil-
son v. Arkansas, 514 U. S. 927, 934 (1995), cannot aid Atwater here.
Founding-era receptions of common law, whether by state constitution or
state statute, generally provided that common-law rules were subject to
statutory alteration. See, e. g., Del. Const., Art. 25 (1776), 2 W. Swindler,
Sources and Documents of United States Constitutions 203 (1973) (herein-
after Swindler) (“The common law of England . . . shall remain in force,
unless [it] shall be altered by a future law of the legislature”); N. J. Const.,
Art. XXII (1776), 6 Swindler 452 (“[T]he common law of England . . .
shall still remain in force, until [it] shall be altered by a future law of the
Legislature”); N. Y. Const., Art. XXXV (1777), 7 Swindler 177–178 (“[S]uch
parts of the common law of England, and of the statute law of England
and Great Britain . . . as together did form the law of [New York on
April 19, 1775,] shall be and continue the law of this State, subject to such
alterations and provisions as the legislature of this State shall, from time
to time, make concerning the same”); N. C. Laws 1778, ch. V, in 1 First
Laws of the State of North Carolina 353 (J. Cushing ed. 1984) (“[A]ll
such . . . Parts of the Common Law, as were heretofore in Force and Use
within this Territory . . . which have not been . . . abrogated [or]
repealed . . . are hereby declared to be in full Force within this State”);
Ordinances of May 1776, ch. 5, § 6, 9 Statutes at Large of Virginia 127 (W.
Hening ed. 1821) (“[T]he common law of England . . . shall be the rule of
decision, and shall be considered in full force, until the same shall be al-
tered by the legislative power of this colony”).

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Amendment did not originally apply to the States, see Bar-
ron v. Mayor of Baltimore, 7 Pet. 243 (1833), but that does
not make state practice irrelevant in unearthing the Amend-
ment’s original meaning. A number of state constitutional
search-and-seizure provisions served as models for the
Fourth Amendment, see, e. g., N. H. Const. of 1784, pt. I, Art.
XIX; Pa. Const. of 1776 (Declaration of Rights), Art. X, and
the fact that many of the original States with such constitu-
tional limitations continued to grant their own peace officers
broad warrantless misdemeanor arrest authority undermines
Atwater’s contention that the founding generation meant to
bar federal law enforcement officers from exercising the
same authority. Given the early state practice, it is likewise
troublesome for Atwater’s view that just one year after the
ratification of the Fourth Amendment, Congress vested fed-
eral marshals with “the same powers in executing the laws
of the United States, as sheriffs and their deputies in the
several states have by law, in executing the laws of their
respective states.” Act of May 2, 1792, ch. 28, § 9, 1 Stat.
265. Thus, as we have said before in only slightly different
circumstances, the Second Congress apparently “saw no in-
consistency between the Fourth Amendment and legislation
giving United States marshals the same power as local peace
officers” to make warrantless arrests. United States v. Wat-
son, 423 U. S. 411, 420 (1976).10
The record thus supports Justice Powell’s observation that
“[t]here is no historical evidence that the Framers or propo-
nents of the Fourth Amendment, outspokenly opposed to the
infamous general warrants and writs of assistance, were at
10 Courts and commentators alike have read the 1792 Act as conferring
broad warrantless arrest authority on federal officers, and, indeed, the
Act’s passage “so soon after the adoption of the Fourth Amendment itself
underscores the probability that the constitutional provision was intended
to restrict entirely different practices.” Watson, 423 U. S., at 429 (Powell,
J., concurring); see also Amar, Fourth Amendment First Principles, 107
Harv. L. Rev., at 764, and n. 14.

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all concerned about warrantless arrests by local constables
and other peace officers.” Id., at 429 (concurring opinion).
We simply cannot conclude that the Fourth Amendment, as
originally understood, forbade peace officers to arrest with-
out a warrant for misdemeanors not amounting to or involv-
ing breach of the peace.
2
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.
Wilson, supra, at 933; see also Payton v. New York, 445
U. S., at 590 (emphasizing “the clear consensus among the
States adhering to [a] well-settled common-law rule”). The
story, on the contrary, is of two centuries of uninterrupted
(and largely unchallenged) state and federal practice permit-
ting warrantless arrests for misdemeanors not amounting to
or involving breach of the peace.
First, there is no support for Atwater’s position in this
Court’s cases (apart from the isolated sentence in Carroll,
already explained). Although the Court has not had much
to say about warrantless misdemeanor arrest authority, what
little we have said tends to cut against Atwater’s argument.
In discussing this authority, we have focused on the circum-
stance that an offense was committed in an officer’s presence,
to the omission of any reference to a breach-of-the-peace lim-
itation.11 See, e. g., United States v. Watson, supra, at 418
(“The cases construing the Fourth Amendment thus reflect
the ancient common-law rule that a peace officer was permit-
ted to arrest without a warrant for a misdemeanor or felony
11 We need not, and thus do not, speculate whether the Fourth Amend-
ment entails an “in the presence” requirement for purposes of misde-
meanor arrests. Cf. Welsh v. Wisconsin, 466 U. S. 740, 756 (1984) (White,
J., dissenting) (“[T]he requirement that a misdemeanor must have oc-
curred in the officer’s presence to justify a warrantless arrest is not
grounded in the Fourth Amendment”).

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committed in his presence . . .”); Carroll, 267 U. S., at 156–
157 (“The usual rule is that a police officer may arrest with-
out warrant one . . . guilty of a misdemeanor if committed in
his presence”); Bad Elk v. United States, 177 U. S. 529, 534,
536, n. 1 (1900) (noting common-law pedigree of state statute
permitting warrantless arrest “[f]or a public offense com-
mitted or attempted in [officer’s] presence”); Kurtz v. Moffitt,
115 U. S. 487, 499 (1885) (common-law presence requirement);
cf. also Welsh v. Wisconsin, 466 U. S. 740, 756 (1984) (White,
J., dissenting) (“ ‘[A]uthority to arrest without a warrant in
misdemeanor cases may be enlarged by statute’ ”).
Second, and again in contrast with Wilson, it is not the
case here that “[e]arly American courts . . . embraced” an
accepted common-law rule with anything approaching una-
nimity. Wilson v. Arkansas, 514 U. S., at 933. To be sure,
Atwater has cited several 19th-century decisions that, at
least at first glance, might seem to support her contention
that “warrantless misdemeanor arrest was unlawful when
not [for] a breach of the peace.” Brief for Petitioners 17
(citing Pow v. Beckner, 3 Ind. 475, 478 (1852), Commonwealth
v. Carey, 66 Mass. 246, 250 (1853), and Robison v. Miner,
68 Mich. 549, 556–559, 37 N. W. 21, 25 (1888)). But none is
ultimately availing. Pow is fundamentally a “presence”
case; it stands only for the proposition, not at issue here, see
n. 11, supra, that a nonfelony arrest should be made while
the offense is “in [the officer’s] view and . . . still continuing”
and not subsequently “upon vague information communi-
cated to him.” 3 Ind., at 478. The language Atwater at-
tributes to Carey (“[E]ven if he were a constable, he had no
power to arrest for any misdemeanor without a warrant, ex-
cept to stay a breach of the peace, or to prevent the commis-
sion of such an offense”) is taken from the reporter’s sum-
mary of one of the party’s arguments, not from the opinion
of the court. While the court in Carey (through Chief Jus-
tice Shaw) said that “the old established rule of the common
law” was that “a constable or other peace officer could not

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arrest one without a warrant . . . if such crime were not an
offence amounting in law to felony,” it said just as clearly
that the common-law rule could be “altered by the legisla-
ture” (notwithstanding Massachusetts’s own Fourth Amend-
ment equivalent in its State Constitution). 66 Mass., at 252.
Miner, the third and final case upon which Atwater relies,
was expressly overruled just six years after it was decided.
In Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817 (1894),
the Supreme Court of Michigan held that the language from
Miner upon which the plaintiff there (and presumably At-
water here) relied “should not be followed,” and then went
on to offer the following: “[T]he question has arisen in many
of our sister states, and the power to authorize arrest on
view for offenses not amounting to breaches of the peace has
been affirmed. Our attention has been called to no case, nor
have we in our research found one, in which the contrary
doctrine has been asserted.” 101 Mich., at 425, 59 N. W.,
at 819 (collecting cases from, e. g., Illinois, Indiana, Massa-
chusetts, Minnesota, Missouri, New Hampshire, New York,
Ohio, and Texas).
The reports may well contain early American cases more
favorable to Atwater’s position than the ones she has herself
invoked. But more to the point, we think, are the numerous
early- and mid-19th-century decisions expressly sustaining
(often against constitutional challenge) state and local laws
authorizing peace officers to make warrantless arrests for
misdemeanors not involving any breach of the peace. See,
e. g., Mayo v. Wilson, 1 N. H. 53 (1817) (upholding statute
authorizing warrantless arrests of those unnecessarily trav-
eling on Sunday against challenge based on state due process
and search-and-seizure provisions); Holcomb v. Cornish, 8
Conn. 375 (1831) (upholding statute permitting warrantless
arrests for “drunkenness, profane swearing, cursing or
sabbath-breaking” against argument that “[t]he power of a
justice of the peace to arrest and detain a citizen without
complaint or warrant against him, is surely not given by the

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common law”); Jones v. Root, 72 Mass. 435 (1856) (rebuffing
constitutional challenge to statute authorizing officers “with-
out a warrant [to] arrest any person or persons whom they
may find in the act of illegally selling, transporting, or dis-
tributing intoxicating liquors”); Main v. McCarty, 15 Ill. 441,
442 (1854) (concluding that a law expressly authorizing ar-
rests for city-ordinance violations was “not repugnant to the
constitution or the general provisions of law”); White v. Kent,
11 Ohio St. 550 (1860) (upholding municipal ordinance per-
mitting warrantless arrest of any person found violating any
city ordinance or state law); Davis v. American Soc. for Pre-
vention of Cruelty to Animals, 75 N. Y. 362 (1878) (upholding
statute permitting warrantless arrest for misdemeanor viola-
tion of cruelty-to-animals prohibition). See generally Wil-
gus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 550,
and n. 54 (1924) (collecting cases and observing that “[t]he
states may, by statute, enlarge the common law right to ar-
rest without a warrant, and have quite generally done so or
authorized municipalities to do so, as for example, an officer
may be authorized by statute or ordinance to arrest without
a warrant for various misdemeanors and violations of ordi-
nances, other than breaches of the peace, if committed in his
presence”); id., at 706, nn. 570, 571 (collecting cases); 1 J.
Bishop, New Criminal Procedure §§ 181, 183, pp. 101, n. 2,
103, n. 5 (4th ed. 1895) (same); W. Clark, Handbook of Crimi-
nal Procedure § 12, p. 50, n. 8 (2d ed. 1918) (same).
Finally, both the legislative tradition of granting warrant-
less misdemeanor arrest authority and the judicial tradition
of sustaining such statutes against constitutional attack are
buttressed by legal commentary that, for more than a cen-
tury now, has almost uniformly recognized the constitution-
ality of extending warrantless arrest power to misdemeanors
without limitation to breaches of the peace. See, e. g., E.
Fisher, Laws of Arrest § 59, p. 130 (1967) (“[I]t is generally
recognized today that the common law authority to arrest
without a warrant in misdemeanor cases may be enlarged by

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statute, and this has been done in many of the states”); Wil-
gus, supra, at 705–706 (“Statutes and municipal charters
have quite generally authorized an officer to arrest for any
misdemeanor whether a breach of the peace or not, without
a warrant, if committed in the officer’s presence. Such stat-
utes are valid” (footnote omitted)); Clark, supra, § 12, at 50
(“In most, if not all, the states there are statutes and city
ordinances, which are clearly valid, authorizing officers to
arrest for certain misdemeanors without a warrant, when
committed in their presence”); J. Beale, Criminal Pleading
and Practice § 21, p. 20, and n. 7 (1899) (“By statute the
power of peace officers to arrest without a warrant is often
extended to all misdemeanors committed in their presence.”
“Such a statute is constitutional”); 1 Bishop, supra, § 183, at
103 (“[T]he power of arrest extends, possibly, to any indict-
able wrong in [an officer’s] presence. . . . And statutes and
ordinances widely permit these arrests for violations of mu-
nicipal by-laws”); J. Bassett, Criminal Pleading and Practice
§ 89, p. 104 (2d ed. 1885) (“[A]s to the lesser misdemeanors,
except breaches of the peace, the power extends only so far
as some statute gives it”). But cf. H. Vorhees, Law of Ar-
rest § 131, pp. 78–79 (1904) (acknowledging that “by author-
ity of statute, city charter, or ordinance, [an officer] may ar-
rest without a warrant, one who . . . commits a misdemeanor
other than a breach of the peace,” but suggesting that courts
look with “disfavor” on such legislative enactments “as inter-
fering with the constitutional liberties of the subject”).
Small wonder, then, that today statutes in all 50 States
and the District of Columbia permit warrantless misde-
meanor arrests by at least some (if not all) peace officers
without requiring any breach of the peace,12 as do a host
of congressional enactments.13 The American Law Institute
12 See Appendix, infra.
13 See, e. g., 18 U. S. C. § 3052 (Federal Bureau of Investigation agents
authorized to “make arrests without warrant for any offense against the
United States committed in their presence”); § 3053 (same, for United

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has long endorsed the validity of such legislation, see Ameri-
can Law Institute, Code of Criminal Procedure § 21(a),
p. 28 (1930); American Law Institute, Model Code of Pre-
Arraignment Procedure § 120.1(1)(c), p. 13 (1975), 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.’ ” 3 W. LaFave, Search and Seizure § 5.1(b), pp. 13–14,
and n. 76 (1996) (quoting Higbee v. San Diego, 911 F. 2d 377,
379 (CA9 1990)) (emphasis in original; footnote omitted).
This, therefore, simply is not a case in which the claimant
can point to “a clear answer [that] existed in 1791 and has
been generally adhered to by the traditions of our society
ever since.” County of Riverside v. McLaughlin, 500 U. S.
44, 60 (1991) (Scalia, J., dissenting).
III
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.14 Instead, she asks us to mint a new
States marshals and deputies); § 3056(c)(1)(C) (same, for Secret Service
agents); § 3061(a)(2) (same, for postal inspectors); § 3063(a)(3) (same, for
Environmental Protection Agency officers); 19 U. S. C. § 1589a(3) (same,
for customs officers); 21 U. S. C. § 878(a)(3) (same, for Drug Enforcement
Administration agents); 25 U. S. C. § 2803(3)(A) (same, for Bureau of Indian
Affairs officers).
14 And, indeed, the dissent chooses not to deal with history at all. See
post, p. 360 (opinion of O’Connor, J.). As is no doubt clear from the text,
the historical record is not nearly as murky as the dissent suggests. See,
e. g., supra, at 333–335 (parliamentary statutes clearly authorizing war-
rantless arrests for misdemeanor-level offenses), 337–338 (colonial and
founding-era state statutes clearly authorizing same). History, moreover,
is not just “one of the tools” relevant to a Fourth Amendment inquiry,
post, at 361. Justice O’Connor herself has observed that courts must

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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 inter-
ests by subjecting particular contemporary circumstances to
traditional standards of reasonableness. See Wyoming v.
Houghton, 526 U. S. 295, 299–300 (1999); Vernonia School
Dist. 47J v. Acton, 515 U. S. 646, 652–653 (1995). Atwater
accordingly argues for a modern arrest rule, one not neces-
sarily 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.15
If we were to derive a rule exclusively to address the un-
contested 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 condi-
tion 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
be “reluctant . . . to conclude that the Fourth Amendment proscribes a
practice that was accepted at the time of adoption of the Bill of Rights
and has continued to receive the support of many state legislatures,” Ten-
nessee v. Garner, 471 U. S. 1, 26 (1985) (dissenting opinion), as the practice
of making warrantless misdemeanor arrests surely was and has, see supra,
at 337–345. Because here the dissent “claim[s] that [a] practic[e] accepted
when the Fourth Amendment was adopted [is] now constitutionally imper-
missible,” the dissent bears the “heavy burden” of justifying a departure
from the historical understanding. 471 U. S., at 26.
15 Although it is unclear from Atwater’s briefs whether the rule she pro-
poses would bar custodial arrests for fine-only offenses even when made
pursuant to a warrant, at oral argument Atwater’s counsel “concede[d]
that if a warrant were obtained, this arrest . . . would . . . be reasonable.”
Tr. of Oral Arg. 5.

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extremely poor judgment. Atwater’s claim to live free of
pointless indignity and confinement clearly outweighs any-
thing 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 govern-
ment need, lest every discretionary judgment in the field be
converted into an occasion for constitutional review. See,
e. g., United States v. Robinson, 414 U. S. 218, 234–235 (1973).
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 at-
tempting to strike a reasonable Fourth Amendment balance
thus credit the government’s side with an essential interest
in readily administrable rules. See New York v. Belton, 453
U. S. 454, 458 (1981) (Fourth Amendment rules “ ‘ought to be
expressed in terms that are readily applicable by the police
in the context of the law enforcement activities in which they
are necessarily engaged’ ” and not “ ‘qualified by all sorts of
ifs, ands, and buts’ ”).16
At first glance, Atwater’s argument may seem to respect
the values of clarity and simplicity, so far as she claims that
the Fourth Amendment generally forbids warrantless ar-
rests for minor crimes not accompanied by violence or some
16 Terry v. Ohio, 392 U. S. 1 (1968), upon which the dissent relies, see
post, at 366, is not to the contrary. Terry certainly supports a more finely
tuned approach to the Fourth Amendment when police act without the
traditional justification that either a warrant (in the case of a search) or
probable cause (in the case of arrest) provides; but at least in the absence
of “extraordinary” circumstances, Whren v. United States, 517 U. S. 806,
818 (1996), there is no comparable cause for finicking when police act with
such justification.

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demonstrable threat of it (whether “minor crime” be defined
as a fine-only traffic offense, a fine-only offense more gener-
ally, or a misdemeanor 17 ). But the claim is not ultimately
so simple, nor could it be, for complications arise the moment
we begin to think about the possible applications of the sev-
eral 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, see Berkemer v. Mc-
Carty, 468 U. S. 420, 431, n. 13 (1984) (“[O]fficers in the field
frequently ‘have neither the time nor the competence to de-
termine’ the severity of the offense for which they are con-
sidering arresting a person”), but that penalties for ostensi-
bly 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? 18 Is
the weight of the marijuana a gram above or a gram below
17 Compare, e. g., Brief for Petitioners 46 (“fine-only”) with, e. g., Tr. of
Oral Arg. 11 (misdemeanors). Because the difficulties attendant to any
major crime-minor crime distinction are largely the same, we treat them
together.
18 See, e. g., Welsh, 466 U. S., at 756 (first DUI offense subject to maxi-
mum fine of $200; subsequent offense punishable by one year’s imprison-
ment); Carroll v. United States, 267 U. S. 132, 154 (1925) (first offense
of smuggling liquor subject to maximum fine of $500; subsequent offense
punishable by 90 days’ imprisonment); 21 U. S. C. §§ 844a(a), (c) (first of-
fense for possession of “personal use amount” of controlled substance sub-
ject to maximum $10,000 fine; subsequent offense punishable by imprison-
ment); Tex. Penal Code Ann. §§ 42.01, 49.02, 12.23, 12.43 (1994 and Supp.
2001) (first public drunkenness or disorderly conduct offense subject to
maximum $500 fine; third offense punishable by 180 days’ imprisonment).

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the fine-only line? 19 Where conduct could implicate more
than one criminal prohibition, which one will the district
attorney ultimately decide to charge? 20 And so on.
But Atwater’s refinements would not end there. She rep-
resents that if the line were drawn at nonjailable traffic of-
fenses, her proposed limitation should be qualified by a pro-
viso 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.”
Brief for Petitioners 46 (internal quotation marks omitted).
(Were the line drawn at misdemeanors generally, a compara-
ble qualification would presumably apply.) The proviso only
compounds the difficulties. Would, for instance, either ex-
ception 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.” Tr. of Oral Arg. 16. 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?
19 See, e. g., 21 U. S. C. §§ 844, 844a (possession of “personal use amount”
of a controlled substance subject to maximum $10,000 fine; possession of
larger amount punishable by one year’s imprisonment); Tex. Health &
Safety Code Ann. § 481.121(b) (Supp. 2001) (possession of four ounces or
less of marijuana a misdemeanor; possession of more than four ounces
a felony). See generally National Survey of State Laws 151–188 (3d
R. Leiter ed. 1999) (surveying state laws concerning drug possession).
20 For instance, the act of allowing a small child to stand unrestrained
in the front seat of a moving vehicle at least arguably constitutes child
endangerment, which under Texas law is a state jail felony. Tex. Penal
Code Ann. §§ 22.041(c), (f) (Supp. 2001). Cf. also 21 Am. Jur. 2d, Criminal
Law § 28 (1998) (“[S]ome statutory schemes permit courts in their discre-
tion to term certain offenses as felonies or as misdemeanors”).

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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 rou-
tinely 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 be-
tween 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 challeng-
ing 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.21 For all these reasons, Atwater’s various distinc-
tions between permissible and impermissible arrests for
minor crimes strike us as “very unsatisfactory line[s]” to re-
quire police officers to draw on a moment’s notice. Carroll
v. United States, 267 U. S., at 157.
One may ask, of course, why these difficulties may not be
answered by a simple tie breaker for the police to follow in
the field: if in doubt, do not arrest. The first answer is that
in practice the tie breaker would boil down to something
akin to a least-restrictive-alternative limitation, which is
itself one of those “ifs, ands, and buts” rules, New York
v. Belton, 453 U. S., at 458, generally thought inappropriate
in working out Fourth Amendment protection. See, e. g.,
Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602,
21 See United States v. Watson, 423 U. S. 411, 423–424 (1976) (“[T]he
judgment of the Nation and Congress has . . . long been to authorize war-
rantless public arrests on probable cause rather than to encumber criminal
prosecutions with endless litigation with respect to the existence of exi-
gent circumstances, whether it was practicable to get a warrant, whether
the suspect was about to flee, and the like”).

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629, n. 9 (1989) (collecting cases); United States v. Martinez-
Fuerte, 428 U. S. 543, 557–558, n. 12 (1976) (“The logic of such
elaborate less-restrictive-alternative arguments could raise
insuperable barriers to the exercise of virtually all search-
and-seizure powers”). Beyond that, whatever help the tie
breaker might give would come at the price of a systematic
disincentive to arrest in situations where even Atwater
concedes that arresting would serve an important societal
interest. An officer not quite sure that the drugs weighed
enough to warrant jail time or not quite certain about a sus-
pect’s risk of flight would not arrest, even though it could
perfectly well turn out that, in fact, the offense called for
incarceration and the defendant was long gone on the day of
trial. Multiplied many times over, the costs to society of
such underenforcement could easily outweigh the costs to
defendants of being needlessly arrested and booked, as At-
water herself acknowledges.22
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.” Tr. of Oral
Arg. 20. 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 atten-
22 The doctrine of qualified immunity is not the panacea the dissent be-
lieves it to be. See post, at 367–368. As the dissent itself rightly ac-
knowledges, even where personal liability does not ultimately materialize,
the mere “specter of liability” may inhibit public officials in the discharge
of their duties, post, at 368, for even those officers with airtight qualified
immunity defenses are forced to incur “the expenses of litigation” and to
endure the “diversion of [their] official energy from pressing public issues,”
Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982). Further, and somewhat
perversely, the disincentive to arrest produced by Atwater’s opaque stand-
ard would be most pronounced in the very situations in which police offi-
cers can least afford to hesitate: when acting “on the spur (and in the heat)
of the moment,” supra, at 347. We could not seriously expect that when
events were unfolding fast, an officer would be able to tell with much
confidence whether a suspect’s conduct qualified, or even “reasonably”
qualified, under one of the exceptions to Atwater’s general no-arrests rule.

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tion, 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, County of Riverside v. McLaughlin, 500 U. S., at
55–58, and there is no reason to think the procedure in this
case atypical in giving the suspect a prompt opportunity to
request release, see Tex. Transp. Code Ann. § 543.002 (1999)
(persons arrested for traffic offenses to be taken “immedi-
ately” before a magistrate). Many jurisdictions, moreover,
have chosen to impose more restrictive safeguards through
statutes limiting warrantless arrests for minor offenses.
See, e. g., Ala. Code § 32–1–4 (1999); Cal. Veh. Code Ann.
§ 40504 (West 2000); Ky. Rev. Stat. Ann. §§ 431.015(1), (2)
(Michie 1999); La. Rev. Stat. Ann. § 32:391 (West 1989); Md.
Transp. Code Ann. § 26–202(a)(2) (1999); S. D. Codified Laws
§ 32–33–2 (1998); Tenn. Code Ann. § 40–7–118(b)(1) (1997); Va.
Code Ann. § 46.2–936 (Supp. 2000). 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 consider-
ation 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, as Atwater’s own amici
emphasize, 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. See Brief for Institute on
Criminal Justice at the University of Minnesota Law School
and Eleven Leading Experts on Law Enforcement and Cor-
rections Administration and Policy as Amici Curiae 11 (the
use of custodial arrests for minor offenses “[a]ctually [c]on-
tradicts [l]aw [e]nforcement [i]nterests”). Finally, and sig-
nificantly, under current doctrine the preference for categori-
cal treatment of Fourth Amendment claims gives way to
individualized review when a defendant makes a colorable

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argument that an arrest, with or without a warrant, was
“conducted in an extraordinary manner, unusually harmful
to [his] privacy or even physical interests.” Whren v.
United States, 517 U. S., at 818; see also Graham v. Connor,
490 U. S. 386, 395–396 (1989) (excessive force actionable
under § 1983).
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.23 We are sure that there are others,24
but just as surely the country is not confronting anything
like an epidemic of unnecessary minor-offense arrests.25
That fact caps the reasons for rejecting Atwater’s request
23 He referred to a newspaper account of a girl taken into custody for
eating french fries in a Washington, D. C., subway station. Tr. of Oral
Arg. 20–21; see also Washington Post, Nov. 16, 2000, p. A1 (describing
incident). Not surprisingly, given the practical and political considera-
tions discussed in text, the Washington Metro Transit Police recently re-
vised their “zero-tolerance” policy to provide for citation in lieu of custo-
dial arrest of subway snackers. Washington Post, Feb. 27, 2001, at B1.
24 One of Atwater’s amici described a handful in its brief. Brief for
American Civil Liberties Union et al. as Amici Curiae 7–8 (reporting
arrests for littering, riding a bicycle without a bell or gong, operating a
business without a license, and “walking as to create a hazard”).
25 The dissent insists that a minor traffic infraction “may often serve as
an excuse” for harassment, and that fine-only misdemeanor prohibitions
“may be enforced” in an arbitrary manner. Post, at 372. Thus, the dis-
sent warns, the rule that we recognize today “has potentially serious con-
sequences for the everyday lives of Americans” and “carries with it grave
potential for abuse.” Post, at 371, 372. But the dissent’s own language
(e. g., “may,” “potentially”) betrays the speculative nature of its claims.
Noticeably absent from the parade of horribles is any indication that the
“potential for abuse” has ever ripened into a reality. In fact, as we have
pointed out in text, there simply is no evidence of widespread abuse of
minor-offense arrest authority.

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for the development of a new and distinct body of constitu-
tional law.
Accordingly, we confirm today what our prior cases have
intimated: the standard of probable cause “applie[s] to all ar-
rests, without the need to ‘balance’ the interests and circum-
stances involved in particular situations.” Dunaway v. New
York, 442 U. S. 200, 208 (1979). 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 vio-
lating the Fourth Amendment, arrest the offender.
IV
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, as required by Tex. Transp. Code Ann. § 545.413
(1999). 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, un-
usually harmful to [her] privacy or . . . physical interests.”
Whren v. United States, 517 U. S., at 818. As our citations
in Whren make clear, the question whether a search or sei-
zure is “extraordinary” turns, above all else, on the manner
in which the search or seizure is executed. See ibid. (citing
Tennessee v. Garner, 471 U. S. 1 (1985) (“seizure by means
of deadly force”), Wilson v. Arkansas, 514 U. S. 927 (1995)
(“unannounced entry into a home”), Welsh v. Wisconsin, 466
U. S. 740 (1984) (“entry into a home without a warrant”), and
Winston v. Lee, 470 U. S. 753 (1985) (“physical penetration of
the body”)). 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

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Appendix to opinion of the Court
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 At-
water, but not so extraordinary as to violate the Fourth
Amendment.
The Court of Appeals’s en banc judgment is affirmed.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
State Statutes Authorizing Warrantless Misdemeanor
Arrests
Ala. Code § 15–10–3(a)(1) (Supp. 2000) (authorizing warrant-
less arrest for any “public offense” committed in the presence
of the officer);
Alaska Stat. Ann. § 12.25.030(a)(1) (2000) (“for a crime
committed . . . in the presence of the person making the
arrest”);
Ariz. Rev. Stat. Ann. § 13–3883(a)(2) (Supp. 2000) (for a mis-
demeanor committed in the officer’s presence);
Ark. Code Ann. § 16–81–106(b)(2)(a) (Supp. 1999) (“where a
public offense is committed in [the officer’s] presence”);
Cal. Penal Code Ann. § 836(a)(1) (West Supp. 2001) (where
“the person to be arrested has committed a public offense in
the officer’s presence”);
Colo. Rev. Stat. § 16–3–102(1)(b) (2000) (when “[a]ny crime
has been or is being committed” in the officer’s presence);
Conn. Gen. Stat. § 54–1f(a) (Supp. 2000) (for “any offense”
when arrestee is taken in the act);
Del. Code Ann., Tit. 11, § 1904(a)(1) (1995) (for any misde-
meanor committed in the officer’s presence);

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356 ATWATER v. LAGO VISTA
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D. C. Code Ann. § 23–581(a)(1)(B) (1996) (where officer has
probable cause to believe a person has committed an offense
in the officer’s presence);
Fla. Stat. § 901.15(1) (Supp. 2001) (for misdemeanor or ordi-
nance violation committed in presence of the officer);
Ga. Code Ann. § 17–4–20(a) (Supp. 1996) (“for a crime . . . if
the offense is committed in [the] officer’s presence”);
Haw. Rev. Stat. § 803–5(a) (1999) (“when the officer has prob-
able cause to believe that [a] person has committed any
offense”);
Idaho Code § 19–603(1) (1997) (“[f]or a public offense com-
mitted or attempted in [officer’s] presence”);
Ill. Comp. Stat., ch. 725, § 5/107–2(1)(c) (1992) (when the offi-
cer “has reasonable grounds to believe that the person is
committing or has committed an offense”);
Ind. Code § 35–33–1–1(a)(4) (Supp. 2000) (when the officer
has probable cause to believe a person “is committing
or attempting to commit a misdemeanor in the officer’s
presence”);
Iowa Code § 804.7(1) (1994) (“[f]or a public offense committed
or attempted in the peace officer’s presence”);
Kan. Stat. Ann. § 22–2401(d) (1999 Cum. Supp.) (for “[a]ny
crime, except a traffic infraction or a cigarette or tobacco
infraction,” committed in the officer’s view);
Ky. Rev. Stat. Ann. § 431.005(1)(d) (Michie 1999) (for any of-
fense punishable by confinement committed in the officer’s
presence); § 431.015(2) (Supp. 2000) (officer should gener-
ally issue citation rather than arrest for certain minor
“violations”);
La. Code Crim. Proc. Ann., Art. 213(3) (West 1991) (where
the officer “has reasonable cause to believe that the person
to be arrested has committed an offense”);
Me. Rev. Stat. Ann., Tit. 15, § 704 (1980) (“persons found vio-
lating any law of the State or any legal ordinance or bylaw

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357 Cite as: 532 U. S. 318 (2001)
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of a town”); Tit. 17–A, § 15(1)(B) (1983 and Supp. 2000) (for
misdemeanors committed in the officer’s presence);
Md. Ann. Code, Art. 27, § 594B(a) (1996 and 2000 Supp.)
(any person who commits, or attempts to commit, “any felony
or misdemeanor” in the presence of an officer);
Mass. Gen. Laws, ch. 276, § 28 (1997) (for designated misde-
meanor offenses); ch. 272, § 60 (for littering offenses where
identity of arrestee is not known to officer);
Mich. Comp. Laws Ann. § 764.15(1)(a) (West 2000) (for felony,
misdemeanor, or ordinance violation committed in the offi-
cer’s presence);
Minn. Stat. § 629.34(1)(c)(1) (Supp. 2001) (“when a public of-
fense has been committed or attempted in the officer’s
presence”);
Miss. Code Ann. § 99–3–7 (Supp. 1998) (for indictable offense
committed in presence of officer); § 45–3–21(1)(a)(vi) (by
Highway Safety Patrol Officers of “any person or persons
committing or attempting to commit any misdemeanor, fel-
ony or breach of the peace within their presence or view”);
Mo. Rev. Stat. § 479.110 (2000) (of “any person who commits
an offense in [the officer’s] presence”);
Mont. Code Ann. § 46–6–311(1) (1997) (if “the officer has
probable cause to believe that the person is committing an
offense”);
Neb. Rev. Stat. § 29–404.02(2)(d) (1995) (when the officer has
probable cause to believe that the person has committed a
misdemeanor in his presence);
Nev. Rev. Stat. § 171.172 (1997) (in fresh pursuit of a person
who commits “any criminal offense” in the presence of the
officer);
N. H. Rev. Stat. Ann. § 614:7 (Supp. 2000) (in fresh pursuit
of any person who has committed “any criminal offense” in
the presence of the officer); § 594:10(I)(a) (upon probable

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358 ATWATER v. LAGO VISTA
Appendix to opinion of the Court
cause for misdemeanor or violation committed in officer’s
presence);
N. J. Stat. Ann. § 53:2–1 (West Supp. 2000) (“for violations of
the law committed in [the officers’] presence”);
N. M. Stat. Ann. § 3–13–2(A)(4)(d) (1999) (“any person in the
act of violating the laws of the state or the ordinances of
the municipality”); § 30–16–16(B) (1994) (for falsely obtaining
services or accommodations); § 30–16–23 (of any person offi-
cer has probable cause to believe has committed the crime
of shoplifting);
N. Y. Crim. Proc. Law §§ 140.10(1)(a) and (2) (McKinney
Supp. 2001) (when officer has probable cause to believe any
offense has been committed in his presence and probable
cause to believe person to be arrested committed the
offense);
N. C. Gen. Stat. § 15A–401(b) (1999) (where an officer has
probable cause to believe the person has committed “a crimi-
nal offense” in the officer’s presence and for misdemeanors
out of the officers presence in certain circumstances);
N. D. Cent. Code § 29–06–15(1)(a) (Supp. 1999) (“[f]or a public
offense, committed or attempted in the officer’s presence”);
Ohio Rev. Code Ann. § 2935.03 (1997 and Supp. 2000) (of a
person “found violating . . . a law of this state, an ordinance
of a municipal corporation, or a resolution of a township”);
but see § 2935.26 (1997) (providing that notwithstanding any
other provision of the Revised Code, when a law enforcement
officer is otherwise authorized to arrest a person for the com-
mission of a minor misdemeanor, the officer shall not arrest
the person, but shall issue a citation, except in specified
circumstances);
Okla. Stat., Tit. 22, § 196(1) (Supp. 2001) (“[f]or a public of-
fense, committed or attempted in [the officer’s] presence”);
Ore. Rev. Stat. § 133.310(1) (1997) (upon probable cause for
any felony, Class A misdemeanor, or any other offense in the

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359 Cite as: 532 U. S. 318 (2001)
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officer’s presence except “traffic infractions” and minor
“violations”);
Pa. Stat. Ann., Tit. 71, § 252(a) (Purdon 1990) (“for all viola-
tions of the law, including laws regulating the use of the
highways, which they may witness”);
R. I. Gen. Laws § 12–7–3 (2000) (for misdemeanors and petty
misdemeanors where “[t]he officer has reasonable grounds to
believe that [the] person cannot be arrested later, or [m]ay
cause injury to himself or herself or others or loss or damage
to property unless immediately arrested”);
S. C. Code Ann. § 17–13–30 (1985) (of persons who, in the
presence of the officer, “violate any of the criminal laws of
this State if such arrest be made at the time of such violation
of law or immediately thereafter”);
S. D. Codified Laws § 23A–3–2 (1998) (“[f]or a public offense,
other than a petty offense, committed or attempted in [the
officer’s] presence”);
Tenn. Code Ann. § 40–7–103(a)(1) (Supp. 2000) (“[f]or a public
offense committed or a breach of the peace threatened in the
officer’s presence”); see also § 40–7–118(b)(1) (1997) (officer
who has arrested a person for the commission of a misde-
meanor should generally issue a citation to such arrested
person to appear in court in lieu of the continued custody
and the taking of the arrested person before a magistrate);
Tex. Code Crim. Proc. Ann., Art. 14.01 (Vernon 1977) (“for
any offense committed in his presence or within his view”);
Utah Code Ann. § 10–3–915 (1999) (for “any offense directly
prohibited by the laws of this state or by ordinance”); § 77–
7–2 (for any public offense committed in presence of officer);
Vt. Rule Crim. Proc. 3(a) (2000) (where officer has probable
cause to believe that “a crime” is committed in his presence);
see also Rule 3(c) (law enforcement officer acting without
warrant who is authorized to arrest a person for a misde-
meanor should generally issue a citation to appear before a
judicial officer in lieu of arrest);

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360 ATWATER v. LAGO VISTA
O’Connor, J., dissenting
Va. Code Ann. § 19.2–81 (2000) (of “any person who commits
any crime in the presence of [an] officer”);
Wash. Rev. Code § 10.31.100 (Supp. 2001), as amended by
2000 Wash. Laws 119, § 4 (for misdemeanors committed in
the presence of the officer);
W. Va. Code § 62–10–9 (2000) (“for all violations of any of the
criminal laws of the United States, or of this state, when
committed in [an officer’s] presence”);
Wis. Stat. § 968.07(1)(d) (1998) (when “[t]here are reasonable
grounds to believe that the person is committing or has com-
mitted a crime”); and
Wyo. Stat. Ann. § 7–2–102(b)(i) (1999) (when “[a]ny criminal
offense” is committed “in the officer’s presence”).
Justice O’Connor, with whom Justice Stevens, Jus-
tice Ginsburg, and Justice Breyer join, dissenting.
The Fourth Amendment guarantees the right to be free
from “unreasonable searches and seizures.” The Court rec-
ognizes that the arrest of Gail Atwater was a “pointless in-
dignity” that served no discernible state interest, ante, at
347, and yet holds that her arrest was constitutionally per-
missible. Because the Court’s position is inconsistent with
the explicit guarantee of the Fourth Amendment, I dissent.
I
A full custodial arrest, such as the one to which Ms. At-
water was subjected, is the quintessential seizure. See
Payton v. New York, 445 U. S. 573, 585 (1980). When a full
custodial arrest is effected without a warrant, the plain
language of the Fourth Amendment requires that the arrest
be reasonable. See ibid. It is beyond cavil that “[t]he
touchstone of our analysis under the Fourth Amendment is
always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal secu-
rity.’ ” Pennsylvania v. Mimms, 434 U. S. 106, 108–109
(1977) (per curiam) (quoting Terry v. Ohio, 392 U. S. 1, 19

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361 Cite as: 532 U. S. 318 (2001)
O’Connor, J., dissenting
(1968)). See also, e. g., United States v. Ramirez, 523 U. S.
65, 71 (1998); Maryland v. Wilson, 519 U. S. 408, 411 (1997);
Ohio v. Robinette, 519 U. S. 33, 39 (1996); Florida v. Jimeno,
500 U. S. 248, 250 (1991); United States v. Chadwick, 433 U. S.
1, 9 (1977).
We have “often looked to the common law in evaluating
the reasonableness, for Fourth Amendment purposes, of po-
lice activity.” Tennessee v. Garner, 471 U. S. 1, 13 (1985).
But history is just one of the tools we use in conducting the
reasonableness inquiry. See id., at 13–19; see also Wilson v.
Arkansas, 514 U. S. 927, 929 (1995); Wyoming v. Houghton,
526 U. S. 295, 307 (1999) (Breyer, J., concurring). And
when history is inconclusive, as the majority amply dem-
onstrates it is in this case, see ante, at 326–345, we will
“evaluate the search or seizure under traditional standards
of reasonableness by assessing, on the one hand, the de-
gree to which it intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed for the pro-
motion of legitimate governmental interests.” Wyoming v.
Houghton, supra, at 300. See also, e. g., Skinner v. Railway
Labor Executives’ Assn., 489 U. S. 602, 619 (1989); Tennessee
v. Garner, supra, at 8; Delaware v. Prouse, 440 U. S. 648, 654
(1979); Pennsylvania v. Mimms, supra, at 109. In other
words, in determining reasonableness, “[e]ach case is to be
decided on its own facts and circumstances.” Go-Bart Im-
porting Co. v. United States, 282 U. S. 344, 357 (1931).
The majority gives a brief nod to this bedrock principle of
our Fourth Amendment jurisprudence, and even acknowl-
edges that “Atwater’s claim to live free of pointless indignity
and confinement clearly outweighs anything the City can
raise against it specific to her case.” Ante, at 347. But in-
stead of remedying this imbalance, the majority allows itself
to be swayed by the worry that “every discretionary judg-
ment in the field [will] be converted into an occasion for con-
stitutional review.” Ibid. It therefore mints a new rule
that “[i]f an officer has probable cause to believe that an indi-

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362 ATWATER v. LAGO VISTA
O’Connor, J., dissenting
vidual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amend-
ment, arrest the offender.” Ante, at 354. This rule is not
only unsupported by our precedent, but runs contrary to the
principles that lie at the core of the Fourth Amendment.
As the majority tacitly acknowledges, we have never con-
sidered the precise question presented here, namely, the con-
stitutionality of a warrantless arrest for an offense punish-
able only by fine. Cf. ibid. Indeed, on the rare occasions
that Members of this Court have contemplated such an ar-
rest, they have indicated disapproval. See, e. g., Gustafson
v. Florida, 414 U. S. 260, 266–267 (1973) (Stewart, J., concur-
ring) (“[A] persuasive claim might have been made . . . that
the custodial arrest of the petitioner for a minor traffic of-
fense violated his rights under the Fourth and Fourteenth
Amendments. But no such claim has been made”); United
States v. Robinson, 414 U. S. 218, 238, n. 2 (1973) (Powell, J.,
concurring) (the validity of a custodial arrest for a minor
traffic offense is not “self-evident”).
To be sure, we have held that the existence of probable
cause is a necessary condition for an arrest. See Dunaway
v. New York, 442 U. S. 200, 213–214 (1979). And in the case
of felonies punishable by a term of imprisonment, we have
held that the existence of probable cause is also a sufficient
condition for an arrest. See United States v. Watson, 423
U. S. 411, 416–417 (1976). In Watson, however, there was a
clear and consistently applied common law rule permitting
warrantless felony arrests. See id., at 417–422. Accord-
ingly, our inquiry ended there and we had no need to assess
the reasonableness of such arrests by weighing individual
liberty interests against state interests. Cf. Wyoming v.
Houghton, supra, at 299–300; Tennessee v. Garner, supra, at
26 (O’Connor, J., dissenting) (criticizing majority for disre-
garding undisputed common law rule).
Here, however, we have no such luxury. The Court’s thor-
ough exegesis makes it abundantly clear that warrantless

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363 Cite as: 532 U. S. 318 (2001)
O’Connor, J., dissenting
misdemeanor arrests were not the subject of a clear and con-
sistently applied rule at common law. See, e. g., ante, at 332
(finding “disagreement, not unanimity, among both the
common-law jurists and the text writers”); ante, at 335 (ac-
knowledging that certain early English statutes serve only
to “riddle Atwater’s supposed common-law rule with enough
exceptions to unsettle any contention [that there was a clear
common-law rule barring warrantless arrests for misde-
meanors that were not breaches of the peace]”). We there-
fore must engage in the balancing test required by the
Fourth Amendment. See Wyoming v. Houghton, supra, at
299–300. While probable cause is surely a necessary condi-
tion for warrantless arrests for fine-only offenses, see Duna-
way v. New York, supra, at 213–214, any realistic assessment
of the interests implicated by such arrests demonstrates that
probable cause alone is not a sufficient condition. See infra,
at 364–366.
Our decision in Whren v. United States, 517 U. S. 806
(1996), is not to the contrary. The specific question pre-
sented there was whether, in evaluating the Fourth Amend-
ment reasonableness of a traffic stop, the subjective intent
of the police officer is a relevant consideration. Id., at 808,
814. We held that it is not, and stated that “[t]he making of
a traffic stop . . . is governed by the usual rule that probable
cause to believe the law has been broken ‘outbalances’ pri-
vate interest in avoiding police contact.” Id., at 818.
We of course did not have occasion in Whren to consider
the constitutional preconditions for warrantless arrests for
fine-only offenses. Nor should our words be taken beyond
their context. There are significant qualitative differences
between a traffic stop and a full custodial arrest. While
both are seizures that fall within the ambit of the Fourth
Amendment, the latter entails a much greater intrusion on
an individual’s liberty and privacy interests. As we have
said, “[a] motorist’s expectations, when he sees a policeman’s
light flashing behind him, are that he will be obliged to spend

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364 ATWATER v. LAGO VISTA
O’Connor, J., dissenting
a short period of time answering questions and waiting while
the officer checks his license and registration, that he may
be given a citation, but that in the end he most likely will be
allowed to continue on his way.” Berkemer v. McCarty, 468
U. S. 420, 437 (1984). Thus, when there is probable cause to
believe that a person has violated a minor traffic law, there
can be little question that the state interest in law enforce-
ment will justify the relatively limited intrusion of a traffic
stop. It is by no means certain, however, that where the
offense is punishable only by fine, “probable cause to believe
the law has been broken [will] ‘outbalanc[e]’ private interest
in avoiding” a full custodial arrest. Whren v. United States,
supra, at 818. Justifying a full arrest by the same quantum
of evidence that justifies a traffic stop—even though the of-
fender cannot ultimately be imprisoned for her conduct—de-
fies any sense of proportionality and is in serious tension
with the Fourth Amendment’s proscription of unreasonable
seizures.
A custodial arrest exacts an obvious toll on an individual’s
liberty and privacy, even when the period of custody is rela-
tively brief. The arrestee is subject to a full search of her
person and confiscation of her possessions. United States v.
Robinson, supra. If the arrestee is the occupant of a car,
the entire passenger compartment of the car, including pack-
ages therein, is subject to search as well. See New York v.
Belton, 453 U. S. 454 (1981). 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.
See County of Riverside v. McLaughlin, 500 U. S. 44 (1991).
Because people arrested for all types of violent and nonvio-
lent offenses may be housed together awaiting such review,
this detention period is potentially dangerous. Rosazza &
Cook, Jail Intake: Managing A Critical Function—Part One:
Resources, 13 American Jails 35 (Mar. /Apr. 1999). And once
the period of custody is over, the fact of the arrest is a per-

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365 Cite as: 532 U. S. 318 (2001)
O’Connor, J., dissenting
manent part of the public record. Cf. Paul v. Davis, 424
U. S. 693 (1976).
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 indi-
viduals suspected of committing that offense.” Welsh v.
Wisconsin, 466 U. S. 740, 754, n. 14 (1984). 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. Cf. Lodging for State of
Texas et al. as Amici Curiae (Texas Department of Public
Safety, Student Handout, Traffic Law Enforcement 1 (1999))
(“Citations. . . . Definition—a means of getting violators to
court without physical arrest. A citation should be used
when it will serve this purpose except when by issuing a
citation and releasing the violator, the safety of the public
and/or the violator might be imperiled as in the case of
D. W. I.”).
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.” Wyoming v. Houghton, 526 U. S.,
at 300. In light of the availability of citations to promote a
State’s interests when a fine-only offense has been com-
mitted, I cannot concur in a rule which deems a full custodial
arrest to be reasonable in every circumstance. Giving police

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366 ATWATER v. LAGO VISTA
O’Connor, J., dissenting
officers constitutional carte blanche to effect an arrest when-
ever there is probable cause to believe a fine-only misde-
meanor has been committed is irreconcilable with the Fourth
Amendment’s command that seizures be reasonable. In-
stead, I would require that when there is probable cause to
believe that a fine-only offense has been committed, the po-
lice officer should issue a citation unless the officer is “able
to point to specific and articulable facts which, taken to-
gether with rational inferences from those facts, reasonably
warrant [the additional] intrusion” of a full custodial arrest.
Terry v. Ohio, 392 U. S., at 21.
The majority insists that a bright-line rule focused on
probable cause is necessary to vindicate the State’s interest
in easily administrable law enforcement rules. See ante, at
347–351. Probable cause itself, however, is not a model of
precision. “The quantum of information which constitutes
probable cause—evidence which would ‘warrant a man of
reasonable caution in the belief ’ that a [crime] has been com-
mitted—must be measured by the facts of the particular
case.” Wong Sun v. United States, 371 U. S. 471, 479 (1963)
(citation omitted). The rule I propose—which merely re-
quires a legitimate reason for the decision to escalate the
seizure into a full custodial arrest—thus does not undermine
an otherwise “clear and simple” rule. Cf. ante, at 347.
While clarity is certainly a value worthy of consideration
in our Fourth Amendment jurisprudence, it by no means
trumps the values of liberty and privacy at the heart of the
Amendment’s protections. What the Terry rule lacks in
precision it makes up for in fidelity to the Fourth Amend-
ment’s command of reasonableness and sensitivity to the
competing values protected by that Amendment. Over the
past 30 years, it appears that the Terry rule has been work-
able and easily applied by officers on the street.
At bottom, the majority offers two related reasons why a
bright-line rule is necessary: the fear that officers who arrest
for fine-only offenses will be subject to “personal [42 U. S. C.]

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367 Cite as: 532 U. S. 318 (2001)
O’Connor, J., dissenting
§ 1983 liability for the misapplication of a constitutional
standard,” ante, at 350, and the resulting “systematic disin-
centive to arrest . . . where . . . arresting would serve an
important societal interest,” ante, at 351. These concerns
are certainly valid, but they are more than adequately re-
solved by the doctrine of qualified immunity.
Qualified immunity was created to shield government offi-
cials from civil liability for the performance of discretionary
functions so long as their conduct does not violate clearly
established statutory or constitutional rights of which a rea-
sonable person would have known. See Harlow v. Fitzger-
ald, 457 U. S. 800, 818 (1982). This doctrine is “the best
attainable accommodation of competing values,” namely, the
obligation to enforce constitutional guarantees and the need
to protect officials who are required to exercise their discre-
tion. Id., at 814.
In Anderson v. Creighton, 483 U. S. 635 (1987), we made
clear that the standard of reasonableness for a search or
seizure under the Fourth Amendment is distinct from the
standard of reasonableness for qualified immunity purposes.
Id., at 641. If a law enforcement officer “reasonably but mis-
takenly conclude[s]” that the constitutional predicate for a
search or seizure is present, he “should not be held person-
ally liable.” Ibid.
This doctrine thus allays any concerns about liability or
disincentives to arrest. If, for example, an officer reason-
ably thinks that a suspect poses a flight risk or might be a
danger to the community if released, cf. ante, at 351, he may
arrest without fear of the legal consequences. Similarly, if
an officer reasonably concludes that a suspect may possess
more than four ounces of marijuana and thus might be guilty
of a felony, cf. ante, at 348–349, and n. 19, 351, the officer will
be insulated from liability for arresting the suspect even if
the initial assessment turns out to be factually incorrect.
As we have said, “officials will not be liable for mere mis-
takes in judgment.” Butz v. Economou, 438 U. S. 478, 507

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368 ATWATER v. LAGO VISTA
O’Connor, J., dissenting
(1978). Of course, even the specter of liability can entail
substantial social costs, such as inhibiting public officials in
the discharge of their duties. See, e. g., Harlow v. Fitzger-
ald, supra, at 814. We may not ignore the central command
of the Fourth Amendment, however, to avoid these costs.
II
The record in this case makes it abundantly clear that Ms.
Atwater’s arrest was constitutionally unreasonable. At-
water readily admits—as she did when Officer Turek pulled
her over—that she violated Texas’ seatbelt law. Brief for
Petitioners 2–3; Record 381, 384. While Turek was justified
in stopping Atwater, see Whren v. United States, 517 U. S.,
at 819, neither law nor reason supports his decision to arrest
her instead of simply giving her a citation. The officer’s ac-
tions cannot sensibly be viewed as a permissible means of
balancing Atwater’s Fourth Amendment interests with the
State’s own legitimate interests.
There is no question that Officer Turek’s actions severely
infringed Atwater’s liberty and privacy. Turek was loud
and accusatory from the moment he approached Atwater’s
car. Atwater’s young children were terrified and hysterical.
Yet when Atwater asked Turek to lower his voice because
he was scaring the children, he responded by jabbing his
finger in Atwater’s face and saying, “You’re going to jail.”
Record 382, 384. Having made the decision to arrest, Turek
did not inform Atwater of her right to remain silent. Id., at
390, 704. He instead asked for her license and insurance
information. Id., at 382. But cf. Miranda v. Arizona, 384
U. S. 436 (1966).
Atwater asked if she could at least take her children to
a friend’s house down the street before going to the police
station. Record 384. But Turek—who had just castigated
Atwater for not caring for her children—refused and said
he would take the children into custody as well. Id., at
384, 427, 704–705. Only the intervention of neighborhood

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369 Cite as: 532 U. S. 318 (2001)
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children who had witnessed the scene and summoned one of
Atwater’s friends saved the children from being hauled to
jail with their mother. Id., at 382, 385–386.
With the children gone, Officer Turek handcuffed Ms. At-
water with her hands behind her back, placed her in the po-
lice car, and drove her to the police station. Id., at 386–387.
Ironically, Turek did not secure Atwater in a seatbelt for the
drive. Id., at 386. At the station, Atwater was forced to
remove her shoes, relinquish her possessions, and wait in a
holding cell for about an hour. Id., at 387, 706. A judge
finally informed Atwater of her rights and the charges
against her, and released her when she posted bond. Id., at
387–388, 706. Atwater returned to the scene of the arrest,
only to find that her car had been towed. Id., at 389.
Ms. Atwater ultimately pleaded no contest to violating the
seatbelt law and was fined $50. Id., at 403. Even though
that fine was the maximum penalty for her crime, Tex.
Transp. Code Ann. § 545.413(d) (1999), and even though Offi-
cer Turek has never articulated any justification for his
actions, the city contends that arresting Atwater was consti-
tutionally reasonable because it advanced two legitimate in-
terests: “the enforcement of child safety laws and encourag-
ing [Atwater] to appear for trial.” Brief for Respondents 15.
It is difficult to see how arresting Atwater served either
of these goals any more effectively than the issuance of a
citation. With respect to the goal of law enforcement gener-
ally, Atwater did not pose a great danger to the community.
She had been driving very slowly—approximately 15 miles
per hour—in broad daylight on a residential street that had
no other traffic. Record 380. Nor was she a repeat of-
fender; until that day, she had received one traffic citation in
her life—a ticket, more than 10 years earlier, for failure to
signal a lane change. Id., at 378. Although Officer Turek
had stopped Atwater approximately three months earlier be-
cause he thought that Atwater’s son was not wearing a seat-
belt, id., at 420, Turek had been mistaken, id., at 379, 703.

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370 ATWATER v. LAGO VISTA
O’Connor, J., dissenting
Moreover, Atwater immediately accepted responsibility and
apologized for her conduct. Id., at 381, 384, 420. Thus,
there was every indication that Atwater would have buckled
herself and her children in had she been cited and allowed
to leave.
With respect to the related goal of child welfare, the deci-
sion to arrest Atwater was nothing short of counterproduc-
tive. Atwater’s children witnessed Officer Turek yell at
their mother and threaten to take them all into custody. Ul-
timately, they were forced to leave her behind with Turek,
knowing that she was being taken to jail. Understandably,
the 3-year-old boy was “very, very, very traumatized.” Id.,
at 393. After the incident, he had to see a child psychologist
regularly, who reported that the boy “felt very guilty that
he couldn’t stop this horrible thing . . . he was powerless to
help his mother or sister.” Id., at 396. Both of Atwater’s
children are now terrified at the sight of any police car. Id.,
at 393, 395. According to Atwater, the arrest “just never
leaves us. It’s a conversation we have every other day, once
a week, and it’s—it raises its head constantly in our lives.”
Id., at 395.
Citing Atwater surely would have served the children’s
interests well. It would have taught Atwater to ensure that
her children were buckled up in the future. It also would
have taught the children an important lesson in accepting
responsibility and obeying the law. Arresting Atwater,
though, taught the children an entirely different lesson: that
“the bad person could just as easily be the policeman as it
could be the most horrible person they could imagine.”
Ibid.
Respondents also contend that the arrest was necessary to
ensure Atwater’s appearance in court. Atwater, however,
was far from a flight risk. A 16-year resident of Lago Vista,
population 2,486, Atwater was not likely to abscond. See
Record 376; Texas State Data Center, 1997 Total Population
Estimates for Texas Places 15 (Sept. 1998). Although she

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was unable to produce her driver’s license because it had
been stolen, she gave Officer Turek her license number and
address. Record 386. In addition, Officer Turek knew
from their previous encounter that Atwater was a local
resident.
The city’s justifications fall far short of rationalizing the
extraordinary intrusion on Gail Atwater and her children.
Measuring “the degree to which [Atwater’s custodial arrest
was] needed for the promotion of legitimate governmental
interests,” against “the degree to which it intrud[ed] upon
[her] privacy,” Wyoming v. Houghton, 526 U. S., at 300, it
can hardly be doubted that Turek’s actions were dispropor-
tionate to Atwater’s crime. The majority’s assessment that
“Atwater’s claim to live free of pointless indignity and con-
finement clearly outweighs anything the City can raise
against it specific to her case,” ante, at 347, is quite correct.
In my view, the Fourth Amendment inquiry ends there.
III
The Court’s error, however, does not merely affect the dis-
position 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 cate-
gory of fine-only misdemeanors. In Texas alone, for exam-
ple, disobeying any sort of traffic warning sign is a misde-
meanor punishable only by fine, see Tex. Transp. Code Ann.
§ 472.022 (1999 and Supp. 2000–2001), as is failing to pay a
highway toll, see § 284.070, and driving with expired license
plates, see § 502.407. Nor are fine-only crimes limited to the
traffic context. In several States, for example, littering is a
criminal offense punishable only by fine. See, e. g., Cal.
Penal Code Ann. § 374.7 (West 1999); Ga. Code Ann. § 16–
7–43 (1996); Iowa Code §§ 321.369, 805.8(2)(af) (Supp. 2001).
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

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372 ATWATER v. LAGO VISTA
O’Connor, J., dissenting
laws, but rather with the manner in which they may be en-
forced. Under today’s holding, when a police officer has
probable cause to believe that a fine-only misdemeanor of-
fense has occurred, that officer may stop the suspect, issue a
citation, and let the person continue on her way. Cf. Whren
v. United States, 517 U. S., at 806. Or, if a traffic violation,
the officer may stop the car, arrest the driver, see ante, at
354, search the driver, see United States v. Robinson, 414
U. S., at 235, search the entire passenger compartment of the
car including any purse or package inside, see New York v.
Belton, 453 U. S., at 460, and impound the car and inventory
all of its contents, see Colorado v. Bertine, 479 U. S. 367, 374
(1987); Florida v. Wells, 495 U. S. 1, 4–5 (1990). Although
the Fourth Amendment expressly requires that the latter
course be a reasonable and proportional response to the cir-
cumstances of the offense, the majority gives officers unfet-
tered 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 evi-
dence of “an epidemic of unnecessary minor-offense arrests.”
Ante, at 353, and n. 25. 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 arse-
nal available to any officer extends to a full arrest and the
searches permissible concomitant to that arrest. An offi-
cer’s subjective motivations for making a traffic stop are not
relevant considerations in determining the reasonableness of
the stop. See Whren v. United States, supra, at 813. But
it is precisely because these motivations are beyond our pur-
view that we must vigilantly ensure that officers’ poststop
actions—which are properly within our reach—comport with
the Fourth Amendment’s guarantee of reasonableness.

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O’Connor, J., dissenting
* * *
The Court neglects the Fourth Amendment’s express com-
mand 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.