The Volokh Conspiracy
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Justices Sotomayor and Gorsuch on the Fourth Amendment and Misdemeanor Arrests
"Founding-era common law gave officers no authority to make an 'arrest without a warrant, for a mere misdemeanor not committed in [their] presence.'"
From Justice Sotomayor's statement respecting the denial of review today in Gonzalez v. U.S., joined by Justice Gorsuch:
Founding-era common law gave officers no authority to make an "arrest without a warrant, for a mere misdemeanor not committed in [their] presence." Bad Elk v. United States (1900) (collecting sources). This petition asks the Court to decide whether the Fourth Amendment incorporates that "in-the-presence" limitation on warrantless misdemeanor arrests. There is reason to think it might. After all, the in-the-presence requirement existed in some form at the founding. This Court has often held, moreover, that the Fourth Amendment "'must provide at a minimum the degree of protection'" the common law afforded at the time of its adoption. Lange v. California, (2021)…
On an early July morning, around 5 o'clock, two Miami Dade police officers encountered petitioner Victor Gonzalez "'walking in the middle of the street'" in a residential neighborhood. The officers, who had received a 911 call reporting a "'white male casing the area,'" engaged Gonzalez in brief conversation and arrested him for the Florida misdemeanor of "loitering and prowling." They performed a search incident to the arrest, which revealed several pieces of mail addressed to neighborhood residents. A grand jury thereafter charged Gonzalez with possessing stolen mail, a federal felony….
"By the common law of England, neither a civil officer nor a private citizen had the right, without a warrant, to make an arrest for a crime not committed in his presence, except in the case of felony." Kurtz v. Moffitt (1885). Instead, as Sir Matthew Hale summarized the rule, a warrantless arrest could be made only "[i]f an affray be made in the presence of a justice of peace, or if a felon be in his presence," and was prohibited "if there be only an affray … not in view of the constable."
After the founding, American States continued to abide by the in-the-presence rule almost without exception. Indeed, during the 19th and 20th centuries, state courts repeatedly reaffirmed the rule's continued vitality in the face of attempts to expand warrantless arrest powers. Today, most States continue to "hold to the view that a warrantless misdemeanor arrest may be made only for an offense committed 'in the presence'" of the arresting officer.
Florida, too, retains an in-the-presence rule. Its loitering and prowling statute, however, provides that officers "may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable [the loiterer] to escape arrest." That provision apparently allowed the officers here to arrest Gonzalez as a "suspected loiterer or prowler," despite the fact that "all [they] saw was a man walking down a neighborhood street in the early morning." …
The Eleventh Circuit thought Gonzalez's arrest permissible because, in its view, the Fourth Amendment does not incorporate the in-the-presence rule in any form. There is a serious question about whether that categorical holding is consistent with this Court's precedent. To be sure, this Court left open "whether the Fourth Amendment entails an 'in the presence' requirement for purposes of misdemeanor arrests" in Atwater v. Lago Vista (2001), where that question was not presented. Since then, however, the Court has several times said that the Fourth Amendment "'must provide at a minimum the degree of protection it afforded when it was adopted.'" Precedent and historical evidence suggest, moreover, that the common law included at least some form of in-the-presence requirement for warrantless misdemeanor arrests. If that is right, it follows that the Fourth Amendment likely does as well….
The Eleventh Circuit decision … failed adequately to address this Court's recent Fourth Amendment precedents. Two of its three reasons for rejecting Gonzalez's arguments relied on its independent assessment of reasonableness and practicality. For example, the Court simply asserted that "Fourth Amendment rights are properly protected absent a presence criterion." Yet Fourth Amendment questions cannot be resolved simply by asking whether, in the courts' view, a criterion is necessary to protect one's privacy interests. To be sure, courts today may have to confront questions about "how to apply the Fourth Amendment to a new phenomenon." As explained, however, this Court has said that the Fourth Amendment must at minimum provide those protections that the common law guaranteed.
In rejecting the in-the-presence rule altogether, the Eleventh Circuit also remarked that the misdemeanor-felony distinction has shifted dramatically since the founding. That is true, but it cuts in favor of Gonzalez, not against him. Even very serious crimes that are now felonies were misdemeanors at common law. "For example, all attempt crimes were only misdemeanors … as were assaults, batteries, woundings, and even kidnappings." In light of the modern expansion of the class of felony crimes, even a categorical in-the-presence rule would be substantially less protective than it was at the founding. That a majority of States retain the in-the-presence requirement for misdemeanor arrests, moreover, is in tension with the Eleventh Circuit's concern that "[i]ncorporating a presence requirement for misdemeanor arrests would likely muddy the waters more than it would protect any additional privacy interests." …
The Eleventh Circuit correctly recognized that the in-the-presence requirement does not appear to have been absolute. Most notably, "[f]rom the enactment of the Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827, night watchmen were authorized and charged" to arrest suspicious "'nightwalkers.'"
The degree to which that exception made it to the early American States is unclear, and it complicates Gonzalez's case. After all, the Florida statute at issue here arguably resembles the old nightwalker statutes. It makes it a misdemeanor for:
"any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity."
Whether a warrantless arrest under such a provision is consistent with a historical "nightwalker" exception, and whether founding-era common law incorporated that exception, are difficult questions. On the one hand, English law permitted the arrest of "'any suspicious night-walker'" who could be detained "'till he give good account of himself.'" On the other, by the 19th century some American state courts had rejected as unlawful warrantless arrests even under circumstances where the nightwalker statutes might have permitted them.
Because it is an open question whether Gonzalez's arrest falls within a historical exception to the in-the-presence requirement, this is an unsuitable case to consider the general rule. This case is complicated for another reason, too: the police may have had probable cause to arrest Gonzalez for felony trespass, and all agree that the in-the-presence rule does not apply to felonies.
The petition nonetheless illustrates the need for percolation on the in-the-presence rule's scope. As some of the courts of appeal have recognized, it remains an open question whether and to what extent the Fourth Amendment incorporates the in-the-presence rule. This Court would benefit from further consideration of that question by the lower courts. In considering the issue, courts should give due regard to the full scope of the common-law rights now secured by the Fourth Amendment.
