Petition for Writ of Certiorari — LeAndre Jordan, Petitioner v. Ohio

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

_______________________________

LEANDRE JORDAN, PETITIONER

V.

THE STATE OF OHIO, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

FROM THE SUPREME COURT OF OHIO

PETITION FOR A WRIT OF CERTIORARI

LAW OFFICE OF THE HAMILTON COUNTY

PUBLIC DEFENDER

Sarah E. Nelson, Esq.

Assistant Public Defender

(Counsel of Record)

Raymond T. Faller, Esq.

Hamilton County Public Defender

Christine Y. Jones, Esq.

Appellate Director

230 East Ninth Street, Second Floor

Cincinnati, Ohio 45202

(513) 946-3665 voice

(513) 946-3840 fax

snelson@hamiltoncountypd.org

Attorneys for Petitioner,

LeAndre Jordan

FLOWERS & GRUBE

Louis E. Grube, Esq.

Paul W. Flowers, Esq.

Melissa A. Ghrist, Esq.

Terminal Tower, 40th Floor

50 Public Square

Cleveland, Ohio 44113

(216) 344-9393

leg@pwfco.com

QUESTION PRESENTED

Are warrantless, probable cause arrests reasonable when no exigency or

contemporaneous crimes are present to excuse the failure to obtain a warrant?

Should United States v. Watson, 423 U.S. 411 (1976), be overruled in light of the

modern trend to more closely analyze the common law within its historical context?

Lange v. California, 141 S.Ct. 2011, 2022-24 (2021).

In Watson, this Court adopted the categorical rule that warrantless arrests in

public based on probable cause do not violate the Fourth Amendment to the United

States Constitution. Even though exigent circumstances and probable cause of a

crime were present at the time of Watson’s arrest, the warrantless-arrest rule set

forth in Watson did not require these conditions before the police may make a public

arrest. Watson at 423-424; id. at 434-435 (Marshall, J., dissenting). Failing to

condition the reasonableness of probable cause arrests in public upon exigent

circumstances or contemporaneous criminal conduct left law enforcement with

exclusive discretion to deprive of their liberty. For the last 46 years, the Fourth

Amendment’s warrant requirement, the role of the neutral and detached magistrate,

and the protection against unreasonable seizures have been eviscerated.

The Fourth Amendment’s reasonableness requirement should demand that

officers either seek a warrant from a neutral and detached magistrate or make a

probable cause arrest without unjustifiable delay. Only exigent circumstances or

contemporaneous criminal conduct should excuse the failure to obtain a warrant. A

less demanding rule falls far below the guarantees of the common law.

i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

There are no parties to the proceeding other than those listed in the caption.

Pursuant to Rule 29.6, Petitioner states that no parties are corporations.

RELATED PROCEEDINGS

All proceedings directly related to this petition include:

1.

Opinion and Judgment Entry of the Supreme Court of Ohio dated November

9, 2021, State v. Jordan, No. 2020-0495.

2.

Opinion and Judgment Entry of the Court of Appeals of Ohio, First Appellate

District dated February 28, 2020, State v. Jordan, Nos. C-180559, C-180560.

3.

Judgment Entry of the Court of Common Pleas for Hamilton County, Ohio

dated September 24, 2018, State v. Jordan, Nos. B-1607185-A, B-1702130-A.

4.

Judgment Entry of the Court of Common Pleas for Hamilton County, Ohio,

Overruling Defendant’s Motion to Suppress dated April 2, 2018, State v.

Jordan, B-1607185-A, B-1702130-A.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE

STATEMENT ................................................................................................................. ii

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS............................................................................................... iii

APPENDIX ................................................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 2

STATEMENT OF THE CASE....................................................................................... 3

REASONS FOR GRANTING THE PETITION .......................................................... 12

I.

Warrantless, probable-cause arrests are unreasonable when no exigency or

contemporaneous crimes are present to excuse the failure to obtain a warrant...12

A.

Watson must be overruled to bring the warrantless arrest exception into

balance with existing Fourth Amendment exceptions to the warrant

requirement. .......................................................................................................... 16

B.

Petitioner Jordan’s case illustrates an unreasonable, warrantless arrest,

demanding that Watson’s categorial approach to warrantless arrests be

overruled. ............................................................................................................... 22

II.

The Court is presented with a live controversy............................................. 24

CONCLUSION ............................................................................................................ 25

iii

APPENDIX

Appendix A:

Supreme Court of Ohio, Judgment Entry and Opinion

State v. Jordan, Slip Opinion No. 2021-Ohio-3922, dated

November 9, 2021 .................................................................. App. 1-33

Appendix B:

Ohio Court of Appeals for the First Appellate District,

Judgment Entry and Opinion, State v. Jordan, Nos. C180559, C-180560, dated February 28, 2020, .................... App. 34-44

Appendix C:

Judgment Entry of the Court of Common Pleas for

Hamilton County, Ohio dated September 24, 2018, State

v. Jordan, No. B-1607185-A ................................................ App. 45-47

Appendix D:

Judgment Entry of the Court of Common Pleas for

Hamilton County, Ohio dated September 24, 2018, State

v. Jordan, No. B-1702130-A ................................................ App. 48-51

Appendix E:

Judgment Entry of the Court of Common Pleas for

Hamilton County, Ohio, Overruling Defendant’s Motion

to Suppress dated April 2, 2018, State v. Jordan, Nos. B1607185, B-1702130-A .............................................................. App. 52

Appendix F:

Excerpt from Transcript of Proceedings dated March 7,

2018 ...................................................................................... App. 53-56

Appendix G:

Ohio Revised Code § 2935.03 .............................................. App. 57-76

iv

TABLE OF AUTHORITIES

Cases

Chimel v. California, 395 U.S. 752 (1969) .................................................................. 21

Coker v. Georgia, 433 U.S. 584 (1977) ........................................................................ 14

Gerstein v. Pugh, 420 U.S. 103 (1975) ........................................................................ 22

Illinois v. Caballes, 543 U.S. 405 (2005) ............................................................... 19, 21

Johnson v. United States, 333 U.S. 10 (1947)............................................................. 12

Kentucky v. King, 563 U.S. 452 (2011) ........................................................................ 16

Lange v. California, 141 S.Ct. 2011, 2022-24 (2021).......................................... passim

Riley v. California, 573 U.S. 373 (2014)...................................................................... 18

Rodriguez v. United States, 575 U.S. 348 (2015) .................................................. 17, 19

South Dakota v. Opperman, 428 U.S. 364 (1976) ....................................................... 18

State v. Paananen, 2015-NMSC-031, 357 P.3d 958 ................................................... 21

Tennessee v. Garner, 471 U.S. 1 (1985) ................................................................. 13, 14

United States v. Jacobsen, 466 U.S. 109 (1984).......................................................... 21

United States v. Watson, 423 U.S. 411 (1976) .................................................... passim

Welsh v. Wisconsin, 466 U.S. 740 (1984) .................................................................... 18

Other Authorities

4 W. Blackstone, Commentaries on the Laws of England (1795) .............................. 15

H. L. Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541 (1924) .................. 15, 16

Laura K. Donohue, The Original Fourth Amendment, 83 U.Chi.L.Rev. 1181 (2016)

................................................................................................................................... 14

Constitutional Provisions

Fifth Amendment to the United States Constitution .................................................. 15

Fourteenth Amendment to the United States Constitution ........................................ 15

Fourth Amendment to the United States Constitution ................................................. 7

v

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Supreme Court of Ohio in this matter was published on

November 9, 2021 appears as Appendix A to the petition and is reported at State v.

Jordan, Slip Opinion No. 2021-Ohio-3922. App. A.

The opinion of the Court of

Appeals of Ohio for the First Appellate District was published on February 28, 2020

appears as Appendix B to the petition and is reported at State v. Jordan, 2020-Ohio689, 145 N.E.3d 357 (1st Dist.). App. B. The judgment entry and decision of the

Court of Common Pleas for Hamilton County, Ohio, in docket numbers B-1607280-A

and B-1702130-A, issued on September 24, 2018, appear at Appendix C to the petition

and is not published. App. C & D.

STATEMENT OF JURISDICTION

The Supreme Court of Ohio issued its opinion affirming the lower appellate

court’s decision on November 9, 2021. Accordingly, the deadline to file this petition

is 90 days from that date, or February 7, 2022. The instant petition is therefore

timely. This Court’s jurisdiction is drawn from 28 U.S.C. § 1257(a). Specifically, the

case challenges the validity of warrantless arrests on the ground that limitless

authority for law enforcement to conduct a warrantless arrest is repugnant to the

Fourth Amendment to the United States Constitution.

1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Ohio Revised Code § 2935.03 (Appears as Appendix G)

Ohio Revised Code § 2935.04

When a felony has been committed, or there is reasonable

ground to believe that a felony has been committed, any

person without a warrant may arrest another whom he has

reasonable cause to believe is guilty of the offense, and

detain him until a warrant can be obtained.

2

STATEMENT OF THE CASE

Someone entered the Cincinnati home of James and Emiko Locke during the

day on December 12, 2016, and stole a safe containing $40,000 and personal papers.

Detective Mark Longworth (“Longworth”) of the Cincinnati Police Department, who

was assigned to investigate, thought it “unusual” that the safe had been taken while

the rest of the valuables in the home were left untouched. He suspected that someone

familiar with the home had taken it. Investigation Notes, State’s Exhibit 1 (“Ex. 1”),

p. 5. The Lockes pointed the finger at their son, Michael Locke (“Michael”), who was

one of two other people familiar with the existence and contents of the safe. Id.

The Lockes had kicked Michael out of the house shortly before the safe was

stolen. On the day of the burglary, Michael repeatedly called his parents to find out

where they were, even showing up at their home afterward “fishing for information.”

The other suspect was Emiko Locke’s godson, who had developed “an extensive

criminal history and also knew about the large amount of currency in the safe” after

staying in the Locke home. Ex. 1, p. 5.

A few days later, possibly on December 14, 2016, a neighbor reported seeing a

white Chrysler 300 sedan leaving the area near the Lockes’ house around 4:30 p.m.

on December 12, and he believed that a barber named “Dre” had been driving it. Ex.

1, p. 5. The Lockes linked this barber to Michael, saying that Michael had received a

haircut recently and had been dropped off at their home in the Chrysler. Detective

Longworth located the Chrysler near the barbershop, photographed it, and confirmed

with the Lockes that this was the car they knew to be driven by “Dre.” When the

3

detective “ran the plate,” he learned that Petitioner, Leandre Jordan (“Jordan”), had

been operating the vehicle but that one of Jordan’s relatives owned it. However,

Jordan was not arrested that day.

Days after the safe was taken—Detective Longworth was not sure which day—

he interviewed Michael. The young man confirmed that Petitioner Jordan drove the

Chrysler and that they had been together on December 12, 2016. He gave the

detective permission to look at the call records on his cellular phone, which confirmed

the calls he made to his parents around the time of the crime. But Michael also spoke

with Jordan at 4:36 p.m., 4:49 p.m., and 5:03 p.m. While Michael denied having

committed a burglary of his parents’ home, this interview confirmed Detective

Longworth’s suspicions that Michael and Jordan were both involved. But Jordan was

not arrested that day, either.

Instead of making an immediate arrest, Detective Longworth engaged in

“several days” of surveillance at the barber shop. He saw Petitioner Jordan enter and

exit the Chrysler numerous times in the eight days after the safe was stolen.

On December 20, 2016, Detective Longworth and his partner stopped

Petitioner Jordan as he left a cell phone store. While Detective Longworth expressed

uncertainty about this incident under oath, Jordan vividly described the arrest. The

detectives confronted him as he walked from the store to his own car, a black Lexus:

I’m talking on the phone talking to my girlfriend, and as

I’m approaching the car and put the keys inside the car, the

detectives ran up on me to the car and with their guns

drawn.

4

Transcript of Proceedings of Hearing on March 7th, 2018 (“Tr.”), pp. 210. He complied

with their instructions to set down his phone and keys and to rest his hands on the

car. The detectives placed him under arrest. They immediately searched him, finding

his wallet:

As he removed my wallet, he took out my ID and the other

ID of Angel Madison that was in my wallet, and during this

whole time, I asked him why I was under arrest, and they

are both silent, not saying anything.

Tr. pp. 212. During the interrogation that followed, the detectives asked him about

his address, the address on his “girlfriend’s driver’s license,” and his involvement with

the safe at the Locke’s home. Jordan denied any participation. But the arrest and

ensuing interview led Detective Longworth to suspect and investigate the home of

Jordan’s girlfriend, Angel Madison (“Madison”).

Detective Longworth swore out an affidavit requesting a search warrant for

Madison’s apartment. Affidavit for Search Warrant, State’s Exhibit 4 (“Ex. 4”), p. 2.

He testified to his belief and “good cause to believe” that “at said place there are

concealed; a safe, $40,000 US currency, personal papers belonging to James Locke[.]”

Ex. 4, p. 1. (Emphasis in original.) The Hamilton County Municipal Court issued a

warrant, and Detective Longworth searched Madison’s home. Id., p. 3. The detective

did not find the safe, nor did he recover “any items belonging to James Locke.” He

and his fellow officers did find cash in the amount of $2,097, heroin, cocaine, an

electronic scale, and an inoperable pistol. Search Warrant Inventory, State’s Exhibit

10 (“Ex. 10”), p. 1.

5

Grand Jurors in Hamilton County, Ohio, indicted Petitioner Jordan on

December 28, 2016, followed by a separate and additional indictment issued on April

20, 2017. In total, Jordan was charged with six crimes, including possession and

trafficking of heroin and cocaine and aggravated possession and trafficking of drugs.

Each count involving cocaine carried a “major drug offender specification,” which

triggers mandatory prison time under Ohio law.

The state never pursued an

indictment on the burglary offense.

On February 27, 2018, Petitioner Jordan submitted his Motion to Suppress

(“Motion”). He sought an order prohibiting the introduction at trial of any evidence

seized during the search of Angel Madison’s home. In support, Jordan urged the

Hamilton County Court of Common Pleas that he had been arrested without probable

cause, that evidence obtained within his vehicle was not acquired during a lawful

search incident to arrest, and that the information gleaned from his interrogation

was elicited without the warnings required by Miranda v. Arizona, 384 U.S. 436

(1966). The Motion noted that Jordan’s “wallet was taken as a result of this search”

of his person. He sought an order prohibiting the introduction at trial of any evidence

seized during the search of Angel Madison’s home because his arrest was made in

violation of the Fourth Amendment to the United States Constitution. Motion, pp. 14.

The trial court held a hearing on the Motion on March 7, 2018. At the hearing,

Detective Longworth confirmed for the court that the arrest occurred before any

warrant had been issued:

6

Q.

Okay. And the warrant for burglary wasn’t found

until after you had already arrested and searched

him, correct?

A.

That’s correct. There was a warrantless arrest based

on probable cause.

Tr. pp. 204. After hearing the detective’s testimony, Petitioner Jordan’s attorney

urged the court that the arrest had also been unconstitutional because it was

conducted without a warrant:

It is our belief that seizure and that search was illegal

because there was no consent, there was no warrant, and

there was no probable cause.

As a result of that illegal detention, that illegal seizure,

that illegal search, per the witness’ own testimony, they got

the address of 208 Belmont, specifically asked, did you

have any independent knowledge, would you have gotten

that any other way, the testimony is, I can’t say, but, no,

that’s the way I got it is from that search of Leandre Jordan

from December 20.

It’s our position that that detention, the seizure, was an

illegal seizure, and any evidence that stemmed from that,

the address, the key is fruit of the poisonous tree and

should be suppressed.

Tr. pp. 228-229 (Emphasis added). Counsel specifically noted the long period of time

between the moment that Detective Longworth began to believe that Jordan

committed a crime and the arrest at gunpoint:

[A]t that point Detective Longworth had had eight days to

go to a judge and get a warrant. He had not.

Tr. pp. 230.

The trial court denied the Motion from the bench and confirmed this ruling in

a later journal entry. App. 52. Judge Robert H. Gorman made an explicit finding

7

that Detective Longworth had already developed probable cause as early as

December 12, 2016, supporting his belief that Petitioner Jordan was involved with

the burglary. The court “assumed from [his] finding as to the warrantless arrest”

that there was probable cause supporting the search warrant. The matter proceeded

to trial on June 18, 2018, after which jurors returned guilty verdicts on all but one

charge, trafficking in cocaine. App. 45-51. Jordan was sentenced to eleven years in

prison with credit for 170 days served in jail. Id.

Petitioner Jordan initiated a timely appeal to Ohio’s First District Court of

Appeals. App. 34-44. He argued “that his arrest was illegal because it was not based

on probable cause and was made without a warrant,” and as a result, “the trial court

erred in denying his motion to suppress[.]” App. 38 at ¶ 8. The appellate court

recognized that a “ ‘warrantless seizure is per se unreasonable unless it falls within

one of the recognized exceptions to the warrant requirement.’ ” App. 39 at ¶ 10,

quoting State v. Pies, 140 Ohio App.3d 535, 539, 748 N.E.2d 146 (1st Dist.2000)). But

the panel relied upon the “exception” for a “warrantless arrest in a public place, which

does not violate the Fourth Amendment if the police officer had probable cause to

believe that the person committed or was committing a felony.” App. 39 at ¶ 10.

While the trial court had erred by considering “Jordan’s post-arrest admissions” in

support of its probable-cause finding, the appellate court affirmed, concluding that

the remaining evidence was “sufficient to cause a prudent person to believe that a

burglary had been committed, and that Jordan was involved in the burglary.” App.

41 at ¶ 17.

8

The First District rejected Petitioner Jordan’s position that his arrest violated

the Fourth Amendment because “police failed to obtain an arrest warrant,” and “no

exigency existed to excuse that requirement.” App. 41 at ¶ 18. The panel criticized

a line of Ohio cases holding “that ‘in order for an officer to lawfully perform a

warrantless arrest in a public place, the arrest must not only be supported by

probable cause, it must also be shown that obtaining an arrest warrant beforehand

was impracticable under the circumstances, i.e., that exigent circumstances exist.’ ”

App. 42 at ¶ 18 (quoting State v. VanNoy, 188 Ohio App.3d 89, 2010-Ohio-2845, 934

N.E.2d 413, ¶ 23 (2d Dist.)); see State v. Woodards, 6 Ohio St.2d 14, 20, 215 N.E.2d

568 (1966) (“Under certain circumstances, a warrant need not be obtained in order to

render an arrest valid. The arresting officer must have probable cause to believe that

a felony was committed by defendant, and the circumstances must be such as to make

it impracticable to secure a warrant.”); State v. Heston, 29 Ohio St.2d 152, 280 N.E.2d

376 (1972) (same). Instead, the court followed “the majority approach,” exemplified

by more recent precedents from the Supreme Court of Ohio, which required only a

showing of “probable cause to believe that Jordan had committed a felony” to justify

his public arrest at gunpoint eight days after a crime had been committed. App. 4243, ¶ 21; e.g., State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶

66. Jordan’s assignment of error was overruled, and his conviction was affirmed.

App. 43 at ¶ 21.

Petitioner Jordan sought further review of his arrest in the Supreme Court of

Ohio, which accepted the appeal for a limited purpose:

9

This court accepted a discretionary appeal to consider a

single proposition of law: “Under R.C. 2935.04, once

probable cause is established, a warrantless arrest is

unconstitutional if there is unreasonable delay in effecting

the arrest. Whether the delay is reasonable depends upon

the circumstances surrounding the delay and the nature of

the offense.” Jordan frames his proposition of law in terms

of unreasonable delay, but he also variously casts his

argument in terms of a requirement of exigent

circumstances or of the impracticability of securing an

arrest warrant. Essentially, he asks this court to hold that

a police officer is constitutionally required to secure an

arrest warrant before conducting an arrest whenever the

circumstances demonstrate that it is practicable to do so.

App. 7 at ¶ 13. Writing for the majority, Chief Justice Maureen O’Connor rejected

Jordan’s arguments.

App. 18 at ¶ 32.

The court reasoned that “R.C. 2935.04

authorizes warrantless arrests for felony offenses,” and that the rule enacted in that

statute was consistent with the protections of the Fourth Amendment. App. 9 at ¶

17; App. 18 at ¶ 32. The determinative precedent was this Court’s decision in Watson,

423 U.S. 411:

The United States Supreme Court returned to the issue of

warrantless felony arrests in Watson, in which it upheld,

as consistent with the Fourth Amendment, a warrantless

arrest that was based on probable cause and that was made

in public. See 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598.

The court stated that nothing in its precedent indicated

that the Fourth Amendment required a warrant to make a

valid felony arrest, and “[i]ndeed, the relevant prior

decisions are uniformly to the contrary.” Id. at 416-417, 96

S.Ct. 820. It characterized that precedent as “reflect[ing]

the ancient common-law rule” that a police officer may

make a warrantless arrest for a felony when the officer has

reasonable grounds for making the arrest. Id. at 418, 96

S.Ct. 820. In light of that longstanding rule, the court

declined to transform a judicial preference for arrest

warrants into a constitutional requirement. Id. at 423, 96

S.Ct. 820.

10

App. 12 at ¶ 22. The majority distinguished the arrest in Heston as one occurring

“inside private property, based on information that Heston had committed a felony,

that he intended to leave town to evade apprehension, and that one of Heston’s

alleged accomplices had already fled.” App. 14 at ¶ 25. Although the decision

referenced Woodards, it did not explain why, in 1966, the majority needed to

determine that “the failure to obtain a warrant was not unreasonable” under the

circumstances to hold that an arrest conducted in public was “justified.” Compare

App. 14-15, ¶ 26 with Woodards, 6 Ohio St.2d at 20-21. Given these authorities, and

most prominently Watson, the majority concluded that “a warrantless arrest,

conducted in public and with probable cause to believe that the arrestee has

committed a felony, is reasonable and does not violate the Fourth Amendment to the

United States Constitution or Article I, Section 14 of the Ohio Constitution.” App. 18

at ¶ 32.

Associate Justice Melody J. Stewart authored a dissenting opinion, which

Associate Justice Jennifer Brunner joined. App. 19-33. These jurists noted that the

felony arrest statutes, Ohio Revised Code §§ 2935.03 and 2935.04, each incorporated

a textual “requirement that an arrest warrant be obtained prior to an arrest unless

doing so is impracticable.” App. 19-20 at ¶ 35. The dissent explained that in past

cases, the court applied the Ohio Constitution’s prohibition against warrantless

arrests when officers engaged in an arrest outside of their statutory authority to do

so. App. 19-23. Ultimately, the dissenting Justices concluded that “the facts in this

case demonstrate that the officers had ample time to secure a warrant before

11

arresting appellant, LeAndre Jordan,” and “the officers acted outside of their

statutory authority to arrest and in violation of Article I, Section 14 of the Ohio

Constitution.” App. 19-20 at ¶ 35.

REASONS FOR GRANTING THE PETITION

Petitioner Jordan now seeks further review in this Court and offers the

following reasons why a writ of certiorari should be granted.

I.

Warrantless, probable cause arrests are unreasonable when no

exigency or contemporaneous crimes are present to excuse the failure

to obtain a warrant.

The point of the Fourth Amendment, which often is not

grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection consists

in requiring that those inferences be drawn by a neutral

and detached magistrate instead of being judged by the

officer engaged in the often competitive enterprise of

ferreting out crime.

-

Johnson v. United States, 333 U.S. 10, 13-14

(1947).

This Court failed to heed this warning when fashioning the warrantless arrest

rule in United States v. Watson, 423 U.S. 411 (1976). Under Watson, this Court gave

law enforcement exclusive authority to act on their untested probable cause

determinations when making a felony arrest. Specifically, Watson held that felony

arrests without a warrant do not violate the Fourth Amendment so long as the arrest

occurs in a public place and is supported by probable cause. Watson at 411. The

instant case demonstrates why the Court’s constitutional analysis and decision

affirming warrantless, probable cause arrests, without regard for exigency or

12

contemporaneous criminal activity, was misguided and must be revisited.

There was no dispute in Watson that the “ancient common-law rule” provided

“that a peace officer was permitted to arrest without a warrant for a misdemeanor or

felony committed in his presence as well as for a felony not committed in his presence

if there was reasonable ground for making the arrest.” Watson, 423 U.S. at 418; Id.

at 438 (Marshall, J., dissenting). But the majority opinion in Watson glazed over

most of the nuance in the common law regarding the authority of police to make a

warrantless arrest in public. The common law that existed when the Bill of Rights

was ratified is important because it sets the undisputed low bar for the protections of

the Fourth Amendment. Lange, 141 S.Ct. at 2022. The generalizations in Watson

undermine the decision’s footing and justify revisiting the rule it set out.

First, the common law conception of a felon differs substantially from the

modern one, although Watson explicitly relied heavily upon the “balance struck by

the common law in generally authorizing felony arrests on probable cause, but

without a warrant.” Watson, 423 U.S. at 421. Justice Byron White later described

this type of logic as “a mistaken literalism that ignores the purposes of a historical

inquiry.”

Tennessee v. Garner, 471 U.S. 1, 13 (1985).

The common law felony

exception was “animated” by “[t]he importance of protecting the public[.]” Laura K.

Donohue, The Original Fourth Amendment, 83 U.Chi.L.Rev. 1181, 1231 (2016).

Accordingly, felonies at common law were those serious crimes “punishable by death,”

on par with treason, or which required “a total forfeiture of either lands, or goods, or

both” during feudal times.

Id.; 4 W. Blackstone, Commentaries on the Laws of

13

England 94-95 (1795). It was “usual to say that all other crimes or offenses than

treason or felony, are misdemeanors.” H. L. Wilgus, Arrest Without a Warrant, 22

Mich.L.Rev. 541, 572-573 (1924). Indeed, the number of offenses that presently

equate to a common law felony has dwindled substantially as society has achieved a

greater degree of civility, placing the death penalty out of reach for all but the most

heinous crimes, while totally rejecting feudal property concepts. Garner at 14; Coker

v. Georgia, 433 U.S. 584, 592 (1977); Fifth Amendment to the United States

Constitution (“No person shall be . . . deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use, without just

compensation.”); Fourteenth Amendment to the United States Constitution (“nor shall

any state deprive any person of life, liberty, or property, without due process of law”).

And as this Court has more recently explained, felony exceptions at common law

“applied to felonies as a class, and to no other whole class of crimes.” Lange, 141 S.Ct.

at 2023.

Watson’s reliance on state laws permitting an arrest in public without a

warrant was equally out of touch. Watson, 423 U.S. at 421-422. Laws providing for

warrantless arrests in public were largely passed before the Fourth Amendment’s

protections were incorporated against the states, and at least one commentator

described such state laws as being enacted “in derogation of common law.” Wilgus,

22 Mich.L.Rev. at 549-550. Indeed, the common law did not necessarily allow an

arrest without a warrant in public for any crime whatsoever:

On the commission of a felony anyone might arrest the

offender, and it was the duty of the constable to do so. If

14

the offender was not arrested on the spot, the sheriff and

constable from the earliest times, and the justices of the

peace from their institution, ought to raise the hue and cry,

and all should follow the cry. There was no statute that

authorized justices of the peace to take information as to a

crime and issue a warrant for the arrest of a suspected

person; but by degrees they assumed and practiced this

power, and between the 14th and 17th century these

warrants superseded or were considered equivalent to the

old hue and cry; the right of summary arrest in cases of

felony however continued.

Id. at 548 (emphasis added, footnotes omitted). Given that arrests pursuant to a

warrant had supplanted the old hue-and-cry practice of banding together as a village

to round up a criminal in all cases but those punishable by death or feudal forfeiture,

the rule permitting a warrantless arrest in public for most crimes had evolved out of

the common law in England well before this nation set out its foundational charter.

For the bulk of crimes currently classified as felonies, an arrest in public without a

warrant would have been considered unlawful and therefore unreasonable:

At common law an assault was a misdemeanor and it was

still only such even if made with the intent to rob, murder,

or rape.

Affrays, abortion, barratry, bribing voters,

challenging to fight, compounding felonies, cheating by

false weights or measures, escaping from lawful arrest,

eavesdropping, forgery, false imprisonment, forcible and

violent entry, forestalling, kidnapping, libel, mayhem,

maliciously killing valuable animals, obstructing justice,

public nuisance, perjury, riots and routs, etc. were

misdemeanors; but embezzlement, obtaining money under

false pretenses, bigamy, etc., were not crimes at all, until

made so by statute.

Id. at 572-573 (footnotes omitted).

Consistent with the rule at common law, it is time to take heed that “the

longstanding existence of a Government practice does not immunize the practice from

15

scrutiny under the mandate of our Constitution.” Watson, 423 U.S. at 438 (Marshall,

J., dissenting). It matters not that Congress “plainly decided against conditioning

warrantless arrest power on proof of exigent circumstances” as late as 1951 given

that “18 U.S.C. § 3052 conditioned the warrantless arrest powers of the agents of the

Federal Bureau of Investigation on there being reasonable grounds to believe that

the person would escape before a warrant could be obtained” long before that. Id., at

423 n.13. The federal government’s earlier adoption of an exigency exception to the

warrant requirement in cases of public arrest strongly supports the view that the

common-law warrant requirement for public arrests had indeed been incorporated

into the Fourth Amendment. See id. at 415-416; see Kentucky v. King, 563 U.S. 452,

459-450 (2011) (generally describing the exigency exception to the warrant

requirement). The lesser protections of Watson, which have diminished the Fourth

Amendment for only mere decades against the centuries of common law, should be

revisited.

And the better practice would be to adopt a “presumption favoring

warrants, as well as the exception allowing immediate arrests of the most dangerous

criminals,” consistent with the common law. Id. at 442 (Marshall, J., dissenting). For

these reasons, Watson should be overruled.

A. Watson must be overruled to bring the warrantless arrest

exception into balance with existing Fourth Amendment

exceptions to the warrant requirement.

The probable-cause-to-arrest exception is unlike any other Fourth Amendment

carve out to the warrant requirement. While this Court has given force to the warrant

requirement by narrowly drawing exceptions attuned to reasonableness under the

16

circumstances of entry into the home and searches of a dwelling, the probable cause

exception for public arrests has swallowed the Fourth Amendment’s warrant

requirement. This disconnect between the rules for public arrests and intrusions into

a home is enough reason alone to revisit Watson. Afterall, there is no text in the

Fourth Amendment justifying differential treatment of the rights “of the people to be

secure in their persons, houses, papers, and effects.” Persons and homes are on at

least equal footing if the words of the Constitution matter. See Watson, 423 U.S. at

445-446 (Marshall, J., dissenting).

This Court has recently shown a willingness to reconsider well-established

exceptions to the Fourth Amendment’s warrant requirement and narrow the

circumstances in which those exceptions apply, departing from categorical rules in

favor of case-by-case analyses. See Lange, 141 S.Ct. 2911 (2021); Rodriguez v. United

States, 575 U.S. 348 (2015). This trend should carry forward in the instant case, and

the categorical rule set forth in Watson allowing for warrantless arrests in a public

place based on probable cause should be rejected. As a class, these arrests are likely

to be unreasonable if a warrant could practically be obtained. Only the presence of

exigent circumstances or contemporaneous criminal conduct should excuse the

failure to obtain a warrant.

Just last term, this Court rejected a categorical rule allowing police to make a

warrantless entry into the home while pursuing a fleeing misdemeanor suspect.

Lange, 141 S.Ct. 2011 (2021). The Court considered whether pursuit of a fleeing

misdemeanor suspect presented a categorical exigent circumstance, thereby

17

permitting warrantless entry into the home to apprehend the suspect. See id. at 2019.

Noting that “exigent circumstances” applied to enable law enforcement to respond to

“situations presenting a compelling need for official action and no time to secure a

warrant,” the Court determined such exigencies do not arise every single time that a

misdemeanant flees into a home. Id. at 2017, quoting Riley v. California, 573 U.S.

373 (2014). Instead, the Court reiterated that exigencies arise in a few recognized

circumstances: to protect an occupant from imminent harm; to prevent the imminent

destruction of evidence; and to prevent escape. Id. “In those circumstances, the delay

required to obtain a warrant would bring about ‘some real immediate and serious

consequences’ ” and thus would excuse the warrant requirement. Id. at 2017-2018,

quoting Welsh v. Wisconsin, 466 U.S. 740 (1984). Accordingly, the Court required

lower courts to analyze misdemeanor hot pursuits on a case-by-case basis. Id. at

2019-2022.

Although the concept of exigency has developed within the context of home

invasion, it should apply with equal force to seizures because persons and homes, as

well as searches and seizures, are protected equally under the Fourth Amendment.

See Lange, 141 S.Ct. at 2017 (tracking the development of exigent circumstances).

Thus, it would appear inconsistent to allow police to act without exigent

circumstances but upon probable cause alone when depriving a citizen of their liberty

interests. There is no exception to the warrant requirement other than Watson that

allows police to act without any recognition of exigency. Compare South Dakota v.

Opperman, 428 U.S. 364, 367 (1976) (the concept of exigency underlies the automobile

18

exception, due to the inherent mobility of the automobile and danger that contraband

would be removed before a warrant could be obtained).

Additionally, Lange is not the only recent instance where law enforcement

authority to seize or search has been limited in scope under the Fourth Amendment.

For instance, in the context of traffic stops, also known as a limited seizure, police do

not have unfettered discretion to investigate beyond the scope of the traffic violation,

although this was not always the rule.

In Illinois v. Caballes, this Court first

recognized that a dog sniff conducted during a lawful traffic stop did not violate the

Fourth Amendment’s proscription against unreasonable seizures.

Illinois v.

Caballes, 543 U.S. 405 (2005). The Court reasoned that the use of a trained narcoticsdetection dog did not implicate any privacy interests, as the dog would only perform

the sniff on the exterior while the motorist was lawfully seized for a traffic violation.

Id. at 409. The Caballes Court explained that “conducting a dog sniff would not

change the character of a traffic stop that is lawful at its inception and otherwise

executed in a reasonable manner,” and did not otherwise infringe upon a protected

privacy interest. Id. at 408 (emphasis added.).

Ten years after Caballes was decided, the contours of executing a dog sniff in

a “reasonable manner” were called into question. Rodriguez v. United States, 575

U.S. 348 (2015).

The Rodriguez Court was asked whether police can extend a

completed traffic stop, without reasonable suspicion, to conduct a dog sniff. Id. at

353. As with the issue presented in this case, the Rodriguez Court was tasked to

define the outer bounds of the dog-sniff rule. Absent reasonable suspicion, could

19

police extend a traffic stop indefinitely? The Court answered this question in the

negative, establishing a well-reasoned limit to the dog-sniff rule. Importantly, the

Court did not eliminate the availability of dog-sniffs during traffic stops; it simply

required that the dog-sniff investigation did not lengthen the detention.

The

authority to conduct the dog-sniff was limited to the time it would take to reasonably

complete the detention for the initial stop. Id. at 354.

The Rodriguez and Lange decisions are instructive to the instant matter as

they demonstrate how Fourth Amendment principles can be narrowed to protect a

citizen’s privacy interests without depriving law enforcement of valuable tools to

investigate criminal activity. These cases also demonstrate how Fourth Amendment

inquiries no longer fit neatly into a categorical rule, and that a totality-of-thecircumstances approach is favored to ensure that Fourth Amendment protections

against unreasonable police intervention are fully realized. This precedent calls into

question Watson’s categorical rule permitting warrantless arrests in a public place

based on probable cause alone. The circumstances preceding the arrest must be

scrutinized to ascertain whether the failure to obtain a warrant was justified under

the circumstances.

Absent a warrant, police must demonstrate exigency or

contemporaneous criminal activity for a warrantless, probable cause arrest to be

valid. As Lange illustrates, exigency is a tried and trusted concept, and there is no

reason to continue to deny its application to probable-cause arrests made in public.

“A seizure that is lawful at its inception can violate the Fourth Amendment if

its manner of execution unreasonably infringes interests protected by the

20

Constitution.” Caballes at 407, citing United States v. Jacobsen, 466 U.S. 109 (1984).

Petitioner Jordan’s case demonstrates how a probable cause arrest can be executed

in an unreasonable manner, infringing not only upon one’s right to be free from

unreasonable seizure, but upon one’s privacy interests as well.

See Chimel v.

California, 395 U.S. 752 (1969) (a lawful custodial arrest triggers a search of one’s

person as incident to arrest). Accordingly, the existence of probable cause should not

excuse an unexplained failure to procure an arrest warrant, as an arrest carries

implications beyond the seizure of one’s person.

Once probable cause that an offense has been committed is established, the

passage of time before making the arrest must trigger an inquiry into whether it was

reasonable for law enforcement to forgo procurement of an arrest warrant. A set

timeframe is not necessary to ascertain what is reasonable, as reasonableness will be

governed by the lack of exigency, the nature of the offense, and the circumstances

surrounding the delay. See, e.g., State v. Paananen, 2015-NMSC-031, 357 P.3d 958,

¶ 27 (holding that circumstances other than exigent circumstances can render a

warrantless public arrest supported by probable cause reasonable; the critical inquiry

is whether it was reasonable for the officer to not procure an arrest warrant). This

analysis would be consistent with that of Lange and Rodriguez, rejecting a categorial

approach and focusing on the factual circumstances of each arrest to ascertain

whether police acted reasonably. A case-by-case inquiry is necessary to protect the

integrity of the warrant requirement, and the reaffirm the importance of having a

neutral and detached magistrate determine probable cause. See Gerstein v. Pugh,

21

420 U.S. 103 (1975) (the surest protection against unreasonable, warrantless seizures

is for judges to conduct a probable cause determination whenever possible).

B. Petitioner Jordan’s case illustrates an unreasonable, warrantless

arrest, demanding that Watson’s categorial approach to

warrantless arrests be overruled.

Jordan was an immediate suspect in the burglary at the Locke residence, yet

law enforcement did not act to apprehend him on the day of the incident or even

shortly thereafter.

Though it may be prudent in some circumstances for law

enforcement to delay an arrest to obtain additional information, the primary evidence

in this case was obtained within hours. Detective Longworth had verified the suspect

vehicle with the juvenile eyewitness and connected Jordan to that vehicle. Rather

than seek a warrant, however, the detectives waited, surveilled Jordan at his place

of employment, and effected the arrest at gunpoint eight days after the burglary.

Unlike in Watson, Jordan was not engaged in a criminal offense at the time of his

arrest. Any exigency that would have arguably supported an immediate arrest at the

time of the burglary (i.e., destruction of evidence or fleeing suspect), had dissipated

by the detective’s delay.

Under these circumstances, the officers should not be

rewarded for acting on untested probable cause; they should have been required to

obtain an arrest warrant.

The Watson Court advised “officers may find it wise to seek arrest warrants

where practicable to do so,” but this case demonstrates how law enforcement will not

heed that advisement. Citizens like Jordan have no protection against overzealous

officers who effectuate warrantless seizures in a public place and avoid judicial

22

oversight. Jordan was seized, his person was searched, and police capitalized on the

evidence obtained from that search to procure a search warrant of his girlfriend’s

apartment. There was no judicial oversight over the arrest prior to the procurement

of the search warrant, and when evidence of the burglary was not revealed in the

apartment search, police abandoned their investigation.

Nevertheless, they

continued to capitalize on the warrantless arrest as the subsequent search warrant

revealed the presence of drugs, and an indictment on drug related charges issued.

The Fourth Amendment can no longer tolerate the blatant and dangerous

privacy intrusion presented in the instant case, particularly in light of this Court’s

recent decision in Lange. Without demanding a warrant or the presence of exigency,

the guarantee that people will be secure in their persons and free from unreasonable

seizure is nullified. Exigent circumstances would justify a public, probable-cause

arrest, limiting wholesale deference to police, and reviving the common-law

protection of judicial consideration of the reasonableness of seizures under the Fourth

Amendment. Moreover, the rule advocated for in this case would not force police to

cut their investigation short or force immediate procurement of an arrest warrant. It

will only require law enforcement to submit their investigation to a magistrate for a

probable cause determination if they elect to delay the arrest. Consistent with Lange,

only the presence of exigency should overcome the warrant requirement. See Watson

at 450-451 (Marshall, J., dissenting). The time is ripe to overrule Watson and depart

from the categorical rule that warrantless arrests are constitutional. This Court

should consider whether probable-cause arrests are unreasonable when no exigency

23

is present and when police have failed to procure an arrest warrant.

II.

The Court is presented with a live controversy.

The present dispute remains a live one. “Article III of the Constitution grants

the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controversies.’ ” Already,

LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). Generally, “those who invoke the power of

a federal court” must “demonstrate standing—a ‘personal injury fairly traceable to

the defendant's allegedly unlawful conduct and likely to be redressed by the

requested relief.’ ” Id., quoting Allen v. Wright, 468 U.S. 737, 751 (1984). “[A]n actual

controversy must be extant at all stages of review, not merely at the time the

complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974).

Petitioner Jordan is imprisoned for an eleven-year term. Through these

proceedings, he seeks to establish that his conviction was the result of an unlawful

seizure, requiring a reversal. Accordingly, there is a live dispute that this Court may

consider.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully Submitted,

LAW OFFICE OF THE HAMILTON COUNTY

PUBLIC DEFENDER

/s/ Sarah E. Nelson

Sarah E. Nelson, Esq.

Assistant Public Defender

(Counsel of Record)

Raymond T. Faller, Esq.

Hamilton County Public Defender

Christine Y. Jones, Esq.

Appellate Director

230 East Ninth Street, Second Floor

Cincinnati, Ohio 45202

513.946.3665 voice

snelson@hamiltoncountypd.org

FLOWERS & GRUBE

/s/ Louis E. Grube

Louis E. Grube, Esq.

Paul W. Flowers, Esq.

Melissa A. Ghrist, Esq.

Terminal Tower, 40th Floor

50 Public Square

Cleveland, Ohio 44113

(216) 344-9393

leg@pwfco.com

Attorneys for Petitioner,

LeAndre Jordan

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