D.Minn.: The common law “in the presence of” requirement for a warrantless misdemeanor arrest is not part of the Fourth Amendment

The common law “in the presence of” requirement for a warrantless misdemeanor arrest is not part of the Fourth Amendment. Here, the defendant was in the presence of the officer when the facts gave the officer probable cause that the defendant was the culprit in a crime the officer did not see. Thus, the arrest was reasonable under the Fourth Amendment. United States v. Alley, 2015 U.S. Dist. LEXIS 143682 (D.Minn. Aug. 12, 2015):

The Court need not reach the question of whether the “in the presence of” requirement was met, however. The Eighth Circuit has observed that the prevailing view is that the Constitution does not require that a misdemeanor offense must have occurred in the officer’s presence to justify a warrantless arrest … and neither the Supreme Court nor this court has decided the question, so any “in the presence” requirement is far from clearly established.

Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1259 (8th Cir. 2010). Indeed, several circuits hold that “the common law ‘in the presence’ rule is not part of the Fourth Amendment.” Woods v. City of Chicago, 234 F.3d 979, 995 (7th Cir. 2000); see Vargas-Badillo v. Diaz-Torres, 114 F.3d 3, 6 (1st Cir. 1997) (stating that “[t]o date, neither the Supreme Court nor this circuit ever has held that the Fourth Amendment prohibits warrantless arrests for misdemeanors not committed in the presence of arresting officers”); United States v. Laville, 480 F.3d 187, 196 (3d Cir. 2007) (holding “the unlawfulness of an arrest under state and local law does not make the arrest unreasonable per se under the Fourth Amendment,” and “at most, the unlawfulness is a factor federal courts to consider in evaluating the totality of the circumstances surrounding the arrest”); Fields v. City of S. Houston, Texas, 922 F.2d 1183, 1189 (5th Cir. 1991) (stating the “United States Constitution does not require a warrant for misdemeanors not occurring in the presence of the arresting officer”); Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) (holding the plaintiff’s “right as an alleged misdemeanant to be arrested only when the misdemeanor is committed in the presence of the arresting officer, [is] not grounded in the federal Constitution and will not support a § 1983 claim”); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (stating that the “requirement that a misdemeanor must have occurred in the officer’s presence to justify a warrantless arrest is not grounded in the Fourth Amendment”).

Given such consensus across various circuits, the Court focuses on whether Blake violated the Fourth Amendment in arresting Alley without considering the “in the presence of” rule. The Court finds that under the circumstances here, Blake had probable cause to conclude Alley was one of the individuals reported to have left the scene of the accident at issue. Alley was in the vicinity of the accident scene shortly after the accident, matched the description of the individual reported to have run, was in the company of someone who matched the description of that person’s companion, was in a location toward which the individual sought had been seen running, and had the appearance of someone who had just run from the scene in the rain. See United States v. Oakley, 153 F.3d 696, 697-98 (8th Cir. 1998) (affirming probable cause to arrest suspect for bank robbery when the defendant, who matched an updated description, was found less than an hour after the robbery and within twelve blocks of the bank). Alley’s nervous behavior is also a relevant factor for the probable cause analysis. See United States v. Jones, 535 F.3d 886, 891 (8th Cir. 2008) (“Evasive behavior, while not alone dispositive, is another fact supporting probable cause.”). Because there was probable cause for Alley’s warrantless arrest, the Court recommends denying Alley’s motion to suppress evidence derived from his arrest.

Caution: The common law at the time of adoption of the Fourth Amendment is a part of the Fourth Amendment (Wilson v. Arkansas). So, this statement, which is essentially dicta here, may not hold up if, and that’s a big if, this issue ever gets to SCOTUS. It’s hard to imagine the issue clean enough to get a cert grant, and this case probably isn’t it.