Cite as: 532 U. S. 318 (2001)
Opinion of the Court
has long endorsed the validity of such legislation, see American 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 warrantless 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
345
Page: Index Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: October 4, 2007