Justices Sotomayor and Gorsuch on the Fourth Amendment and Misdemeanor Arrests
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 vita
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