Aggressively Defending My Clients Since 1990


On Behalf of | May 31, 2021 | Firm News

One of the main reasons America was founded was because of British general warrants.  Using “writs of assistance,” the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These “hated writs,” Stanford v. Texas, 379 U.S. 476, 484 n.13 (1965) spurred colonists toward revolution.  Stanford, 379 U.S. at 481 (“Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.”) See also Marcus v. Search Warrant of Property, 367 U.S. 717, 729 (“The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”). The problem of general warrants directly motivated James Madison to write the Fourth Amendment.

The bad news for Americans is that general warrants are back.  Today general warrants are contained in the traffic code.  Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 17 Pace L. Rev. 97 (1997),

The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”  But courts have created an incredible number of exceptions to that rule: because vehicles are mobile, citizens are not secure in their car and maybe seized and searched for any of the possible 1000s of traffic violations which exist even if upon conviction you cannot be placed in jail.

Don’t take my word for it.  Ask Ms. Atwater.   Atwater was traveling approximately 15 miles per hour with her crying children in her pickup truck in a suburban neighborhood when she was pulled over by Officer Bart Turek for no seatbelt on.  Atwater v. Lago Vista, 532 U.S. 318 , 121 S.Ct. (2001).  Clearly Atwater was a criminal.

Turek approached and yelled “we’ve met before” and “you’re going to jail.” When Atwater’s children began crying and were upset, she asked Turek if she could take them to a friend’s house down the block. Turek told her “you’re not going anywhere.” Atwater’s purse had been stolen the day before which meant her driver’s license and insurance were missing. Turek allegedly replied that he had “heard that story 200 times.” According to Atwater, she was apologetic about the seatbelt violation and took responsibility for her actions. Luckily, the nearby neighbor learned what was going on and arrived to take charge of the children. Otherwise, Turek had apparently threatened to take the children into custody as well. Atwater was handcuffed and placed in the police car, but interestingly, Turek did not seatbelt her.

At the police station, Atwater’s shoes, jewelry, eyeglasses were taken and she emptied her pockets. Officers took her mug shot and placed her alone in a cell for about one hour, after which she was taken before a magistrate and released on a $ 310 bond. Later, she pleaded no contest to the seatbelt violation and paid a $ 50 fine. The other charges were dismissed presumably because Atwater was able to produce the valid driver’s license and insurance. Finally, Atwater claimed that her children were so traumatized by this incident that they required psychological therapy. So even though under the worst possible penalty for this offense, Atwater could not go to jail.   Nevertheless, police through her in jail before she was released.  Incidentally, under Wisconsin law when a stop involves a minor equipment violation or seatbelt offense, courts hold there is a reasonable basis for the search of his vehicle.  State v. Moretto, 144 Wis. 2d 171, 423 N.W.2d 841 (1988).

So much for the right of the people to be secure in their persons.