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HEADLINE: COURT UPHOLDS ARREST OF TEXAN ON SEAT BELT VIOLATION

BYLINE: JONATHAN RINGEL, MARY ALICE ROBBINS

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A divided U.S. Supreme Court on April 24 limited the Constitution's guarantee against unreasonable arrests, holding that a police
officer who sees someone break the law can handcuff and take the individual into custody even for a minor offense punishable only
by a fine.In a 5-4 decision, the court held that the 1997 arrest of Lago Vista soccer mom Gail Atwater for seat belt violations - an
offense punishable by a $ 50 fine - and failure to show proof of insurance did not violate the Fourth Amendment prohibition
against unreasonable arrests and searches. The court's majority opinion noted that Bart Turek, a Lago Vista police officer,
handcuffed Atwater in front of her two children, then 5 and 3, after observing that none of the trio was wearing a seat belt while
riding in Atwater's vehicle.

Andy Taylor, first assistant to Texas Attorney General John Cornyn, says the Supreme Court's decision in Atwater v. City of Lago
Vista is significant because it preserves a state's right to decide whether persons stopped for traffic violations can be arrested.

"We believe the Atwater decision is a significant victory for the sovereign states," says Taylor, who argued the case before the
Supreme Court on behalf of Texas and 10 other states.

State lawmakers in Texas took steps to change the state's policy regarding such arrests within hours after the court ruled in the case.
On April 24, the House tentatively approved a bill that would prevent an arrest for a Class C misdemeanor for which the punishment
is a fine if a driver shows an unexpired driver's license or personal identification. The bill won final approval from the House by a
134-9 vote on the following day and was sent to the Senate.

Under the Transportation Code, the maximum penalty for a Class C misdemeanor traffic violation is a fine, says Rep. Pete Gallego,
an Alpine Democrat who sponsored the bill.

"If the maximum penalty is a fine only, then by definition you shouldn't be able to take somebody to jail," says Gallego, of counsel
at Davis & Wilkerson in Austin.

Lower courts had disagreed on whether the police officer violated Atwater's Fourth Amendment guarantee against unreasonable
search and seizure.

U.S. Supreme Court Justice David Souter, considered one of the court's more liberal members, joined four conservatives - Chief
Justice William H. Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas - in upholding Atwater's arrest.

According to news reports, Atwater was driving home from a soccer game on March 26, 1997, when Turek stopped her a few
blocks from her home in Lago Vista.

Souter's opinion said Turek saw the seat belt violations and stopped Atwater, who told the officer that she did not have her driver's
license or proof of insurance because her purse had been stolen.

Citing Atwater's allegations, the opinion said Turek verbally berated the woman for the seat belt violations before handcuffing her
and taking her to the police station, where she spent about an hour in jail before being released on a $ 310 bond.

While acknowledging that, at best, Turek exercised "extremely poor judgment," Souter wrote for the majority that the test weighing
an essential law enforcement interest against the rights of Atwater favored the police.

"We have traditionally recognized that a responsible Fourth Amendment balance is not well-served by standards requiring sensitive,
case-by-case determinations of government need, lest every discretionary judgment in the field be converted to an occasion for
constitutional review," Souter wrote.

A constitutional rule against arrests for fine-only ies, Souter added, "would not only place police in an almost impossible spot but
would guarantee increased litigation over many of the arrests that would occur."

Writing for the dissenters, Justice Sandra Day O'Connor responded, "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."

Justices Ruth Bader Ginsburg, John Paul Stevens and Stephen Breyer joined O'Connor in the dissent.

Crime and Punishment

Robert DeCarli, Atwater's attorney, says the majority's opinion was disappointing.

"Five members of the Supreme Court say it's up to the individual officer whether to take a person to jail," says DeCarli, a partner in
Austin's DeCarli & Irwin. "The officer doesn't even have to offer justification."

R. James "Jim" George, Lago Vista's lawyer, says Turek was concerned about the safety of Atwater's children because they were
not in seat belts.

"Do you know how many children die every year because they're not in seat belts?" asks George, a partner in Austin's George &
Donaldson. He estimates the number at 6,000.

The law allows a person to be arrested if he commits a crime, George says, adding, "That does not violate any right."

George Dix, a professor at the University of Texas School of Law, says the Supreme Court has failed to take appropriate steps to
impose reasonable limits on traffic enforcement. "In my view, they just want to take hands off in this difficult area of police activity,"
he says.

Dix says the Supreme Court's 1996 decision in Whren v. United States said a police officer's subjective purpose in stopping an
individual does not control whether he can search that individual. In 1998, the court held in Knowles v. Iowa that an officer could
not conduct a search incidental to a traffic stop if he had decided not to make a custodial arrest, the professor says.

With the Atwater decision, Dix says police possibly could tell an individual that he'll be arrested if he refuses to allow a search of
his vehicle when stopped for a traffic violation but that a ticket will be his only penalty if nothing is found in the search.

Because of the way traffic statutes are written, Dix says, no one could drive two blocks without giving an officer probable cause to
make a stop. What that means, he says, is police will be able to stop any person on the street and claim probable cause for the stop.

"What I find really so offensive was the majority's failure to worry about this," Dix says.

Bill Kruger, who has represented the city since the suit began, says the Fourth Amendment requires reasonableness in its standard
for search and seizure.

"It has been the law and effectively the law for many, many years. It does not need to be changed in this circumstance," says Kruger,
a partner in Fletcher & Springer in Austin.

Taylor says citizens still would have a remedy under the 14th Amendment's equal protection clause if police do not consistently and
properly apply the law.

Copyright 2001, Texas Lawyer. All rights reserved.

LOAD-DATE: May 15, 2001