CA10: The common law “in the presence” requirement for warrantless misdemeanor arrests isn’t mandated by 4A

There was probable cause to arrest defendant when he became combative about being questioned for a theft from a Walgreens two days earlier which resulted in a six month sentence. Plaintiff’s argument that the off-duty officer couldn’t arrest without an on-duty officer there proves too much because that means no state action. The common law rule that a misdemeanor has to occur in the presence of an officer for the officer to make an arrest isn’t mandated by the Fourth Amendment. [Various offenses all around the country are exceptions, most notably domestic battery.] Hartz v. Campbell, 2017 U.S. App. LEXIS 3592 (10th Cir. Feb. 28, 2017):

Hartz next argues that Campbell had no authority to seize him until “an on duty officer” arrived and investigated the matter. Aplt. Br. at 3. But if Campbell lacked such authority, we fail to see how he acted under color of state law for purposes of § 1983 liability. See Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996) (noting that § 1983 liability requires an “exercise[ ] [of] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law” (internal quotation marks omitted)).

To the extent Hartz complains he was arrested in violation of Kansas law for a misdemeanor completed outside of Campbell’s presence, “Fourth Amendment protections [are not linked] to state law.” Virginia v. Moore, 553 U.S. 164, 176 (2008). And neither the Supreme Court nor the Tenth Circuit has definitively declared that “the Fourth Amendment entails an ‘in the presence’ requirement for purposes of misdemeanor arrests,” Atwater v. City of Lago Vista, 532 U.S. 318, 340 n.11 (2001); see also Chimera v. Lockhart, 511 F. App’x 785, 793 n.9 (10th Cir. 2013) (stating in dicta “that the circuits to have addressed the [in-presence] issue have consistently held that it does not” “give rise to § 1983 liability”). Indeed, it is widely recognized that the Fourth Amendment does not impose an in-presence requirement. See Graves v. Mahoning City, 821 F.3d 772, 778-79 (6th Cir. 2016) (collecting cases); 3 W. LaFave, Search & Seizure § 5.1(c) (2013) (stating that the in-presence requirement “is not mandated by the Fourth Amendment”).

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