Traffic Stops, Littering Tickets, and Police Warnings: The Case for a Fourth Amendment Non-Custodial Arrest Doctrine
Moran, David A., American Criminal Law Review
Over the past thirty years, the United States Supreme Court has recognized and developed three categories of police-citizen encounters for purposes of the Fourth Amendment:(1) consensual encounters,(2) investigative stops,(3) and custodial arrests.(4) The Court has defined the boundaries between the categories(5) and, for each, has specified the level of suspicion required to initiate the encounter(6) and the intrusiveness of the search a police officer may conduct incident to the encounter.(7) The Court has decided dozens of cases by placing a particular police-citizen encounter into one of these three categories and then examining the police conduct in terms of the doctrine developed for that Category.(8) The doctrine is so well developed that lower courts and commentators routinely recite that there are three, and only three, categories of police-citizen encounters.(9)
The only problem with this tidy picture is that it is demonstrably wrong. As the following three scenarios illustrate, there are common police-citizen encounters that are neither consensual encounters, Terry stops, nor arrests:
Scenario (1): After observing Jones' car travelling at 75 miles per hour in a 55 mile per hour zone, Officer Adams pulls Jones over. Adams orders Jones to step out of the car and to produce her license, registration, and proof of insurance. After checking her documents, Adams issues Jones a speeding ticket. Scenario (2): Officer Adams walks up to Jones after she throws her hot dog wrapper onto the sidewalk. Adams orders Jones to produce identification and, after checking it, issues her a citation for littering. Scenario (3): Same as (2), except Adams does not issue Jones a citation. Instead, Adams orders Jones to pick up the wrapper and warns her that he will ticket her if he ever catches her littering again.
Because each of these scenarios is based upon encounters that occur thousands of times every day in the United States, one might expect that the Supreme Court would have, by now, categorized them as full-blown arrests, investigative stops, or consensual encounters. Surprisingly, that expectation turns out to be incorrect. The Supreme Court has never explicitly placed encounters such as these into one of its three categories.
To the contrary, the Court's treatment of the first scenario, the routine traffic violation stop, has been so confusing and inconsistent that some lower federal and state courts incorrectly regard such stops as Terry stops requiring only reasonable suspicion, even though the Supreme Court has held that probable cause is required for such an encounter.(10) A few state courts have recognized that a routine traffic stop is a "non-custodial arrest," but have done so primarily on the authority of state statutes, rather than the Fourth Amendment.(11)
The Supreme Court has created this confusion by failing to explicitly recognize the constitutional doctrine of non-custodial arrests and, even worse, by analogizing routine traffic violation stops to Terry stops.(12) This analogy is misleading because a routine traffic violation stop differs in several significant respects from an investigative stop. For example, a traffic violation stop requires probable cause, a higher degree of suspicion than is required for a Terry stop,(13) and a traffic violation stop may last longer than would be permissible for a Terry stop.(14) In addition, traffic violations are completed offenses that are too petty to justify an investigative stop.(15)
However, the Court has clearly recognized that traffic violation stops are not custodial arrests.(16) Therefore, Miranda warnings need not be given during a traffic violation stop because a motorist pulled over to the side of the road is not in custody for purposes of the Fifth Amendment,(17) and an officer may not perform a search incident to custodial arrest during a traffic violation stop unless an occupant of the vehicle has actually been taken into custody. …