Free The Rights of the People by David K. Shipler

assertion. The historical record was mixed, at best, Souter wrote. He found no evidence that the framers sought such limitation. On the contrary, state legislatures at the time authorized nonviolent misdemeanor arrests. In early years after independence, American laws permitted arrests for profanity and violating the Sabbath. And he found much in English statutory law, some dating back to the thirteenth century, to riddle any common-law protection. A 1285 act authorized the arrest of nonviolent minor offenders, such as “nightwalkers,” strangers who happened to walk through town at night. “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 or occupied.’ ” Centuries later, Americans might fairly shudder as antiquated indignities are absorbed into modern jurisprudence.
    The majority noted that all fifty states and the District of Columbia permitted arrests for misdemeanors that carried no jail time, and that those measures had withstood judicial challenges. (D.C. had changed the law and exempted most traffic offenders from arrest, frustrating old-timers on the police force who remembered nostalgically the days when a couple of outstanding tickets got you busted and your car searched.) Souter’s key point was not that the Atwater arrest was justifiable—indeed, he and the majority found it full of “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment.” But the justices did not think that one policeman’s overreaction shouldinduce the Court to ban all such misdemeanor arrests and thus “mint a new rule of constitutional law.”
    The fudge factor in the text of the Fourth Amendment is the word “unreasonable,” which presents judges with latitude for indulging their predilections for or against police power. Courts have held that to be reasonable, an arrest must balance two competing factors: its intrusion on personal privacy versus its weight in promoting government interests, as O’Connor noted in her
Atwater
dissent. She was known as a pragmatic justice, rooted as much in the real-life impacts of decisions as in their constitutional principles. Unlike Souter, she saw no problem deciding each case individually, and she accused the majority of minting its own “new rule” permitting an arrest for “even a very minor criminal offense,” as the majority itself had characterized the seat-belt incident.
    But seven years later, in 2008, she joined a unanimous Court in giving the police latitude to arrest and search drivers even where the law authorized nothing more than a summons. A Virginia man, taken into custody for driving on a suspended license, was personally searched—standard procedure incident to an arrest—and crack cocaine was found. He lost his argument to have his arrest declared illegitimate and the drugs excluded from evidence. 42
    Traffic stops and car searches have been among the most confusing and difficult areas for the courts. Case law holds that warrantless searches accompanying arrests are justified for two purposes only: either to preserve evidence or to protect officers from hidden weapons. But these are fragile limits on police power, drawing support from only a slim majority of five justices in 2009. They barely ruled for an Arizona man who had turned into his driveway, parked, gotten out, and was then arrested for driving with a suspended license. After he was securely handcuffed and locked in a patrol car, the officers searched his vehicle, where they found a jacket with crack in a pocket. The five in the majority found the obvious: that the detainee could not have gained access to any gun that might have been in his car, and that the