CA6: The fact the officer was investigating a misdemeanor that didn’t happen in his presence doesn’t confine the 4A inquiry despite the common law

The Fourth Amendment does not prohibit officers from investigating misdemeanors and making stops based on that, even if the common law prohibits arrests for misdemeanors not committed in the officer’s presence. United States v. Jones, 2020 U.S. App. LEXIS 9038 (6th Cir. Mar. 23, 2020):

What about non-felony crimes? Does the Fourth Amendment prohibit officers from making a Terry stop to investigate a misdemeanor? Attentive readers of Fourth Amendment caselaw should be skeptical of such a standard. “[T]he touchstone of the Fourth Amendment is reasonableness,” not “bright-line rules.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). And the Supreme Court has consistently rejected lower courts’ attempts to avoid dealing with “endless variations in the facts and circumstances implicating the Fourth Amendment” by crafting “litmus-paper” tests or “single sentence or paragraph” rules. Id. (quotation omitted); see also Hensley, 469 U.S. at 226-27.

The Court has given us some of the tools to answer the question already. Hensley explained that the “proper way” to identify the “precise limits on investigatory stops to investigate past criminal activity” is to “apply the same test already used to identify the proper bounds of intrusions that further investigations of imminent or ongoing crimes.” Hensley, 469 U.S. at 228. Courts must balance “the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.” Id.

True, Hensley left open whether “Terry stops to investigate all past crimes, however serious, are permitted.” Id. at 229. But it did not erect an “automatic barrier” to investigating completed misdemeanors either. Id. The Court left it to the lower courts to apply the traditional Fourth Amendment considerations, rather than create an “inflexible rule” if and when the question of investigating a completed misdemeanor (or other non-felony crime) came up. Id. at 227.

The Court’s guidance has prompted every other circuit to follow the Hensley facts-and-circumstances test in considering the misdemeanor side of the problem. United States v. Hughes, 517 F.3d 1013, 1017-18 (8th Cir. 2008); United States v. Grigg, 498 F.3d 1070, 1076-77, 1081 (9th Cir. 2007); United States v. Moran, 503 F.3d 1135, 1141-43 (10th Cir. 2007). In doing so, the circuit cases sometimes come out on the side of the government, Moran, 503 F.3d at 1143, sometimes on the side of the defendant, Grigg, 498 F.3d at 1081-83; Hughes, 517 F.3d at 1018-19.

An across-the-board prohibition on stops to investigate completed non-felonies runs into other problems, including the elusive and evolving nature of the felony-misdemeanor distinction and its disappearance in some instances. While “in earlier times the gulf between the felonies and the minor offences was broad and deep, … today the distinction is minor and often arbitrary.” Tennessee v. Garner, 471 U.S. 1, 14, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (quoting 2 F. Pollock & F. Maitland, The History of English Law 467 n.3 (2d ed. 1909)). Once upon a time, “felony” described the most severe crimes. “No crime was considered a felony which did not occasion a total forfeiture of the offender’s lands or goods or both.” Kurtz v. Moffitt, 115 U.S. 487, 499, 6 S. Ct. 148, 29 L. Ed. 458 (1885); see also Garner, 471 U.S. at 13 n.11. Today, serious crimes are usually felonies, but not always. In Kentucky, where Jones’ arrest occurred, it is a misdemeanor to incite a riot, possess burglar’s tools, stalk someone, or flee the police. Ky. Rev. Stat. Ann. §§ 508.150, 511.050, 520.100, 525.040. And the Commonwealth treats stealing mail, driving a car without permission (for the second time), and receiving deposits at an insolvent financial institution as felonies. Id. §§ 514.100, 514.140, 517.100. Some States leave the classification to prosecutors and judges. See Ewing v. California, 538 U.S. 11, 17, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003). The status of these “wobbler” crimes thus may not be known until the crime is charged or the offender sentenced. Id. If our touchstone is reasonableness, it’s odd to say that police could stop a suspect on reports he had stolen mail but not on reports he had incited a riot (or assaulted someone)—or that a valid stop to investigate a felony becomes invalid if the prosecutor charges it as a misdemeanor. All of this confirms the danger of using misdemeanor labels alone to define the coverage of the Fourth Amendment.