Amicus Curiae Brief — LeAndre Jordan, Petitioner v. Ohio

No. 21-7089

In the Supreme Court of the United States

__________________

LEANDRE JORDAN,

v.

STATE OF OHIO,

__________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Ohio

__________________

BRIEF OF AMICI CURIAE CUYAHOGA

COUNTY PUBLIC DEFENDER’S OFFICE, ET

AL. IN SUPPORT OF PETITIONER

__________________

ERIKA B. CUNLIFFE

Counsel of Record

ASSISTANT PUBLIC DEFENDER

CUYAHOGA COUNTY PUBLIC

DEFENDER’S OFFICE

310 Lakeside Avenue, Suite 200

Cleveland, Ohio 44113

(216) 443-7583

ecunliffe@cuyahogacounty.us

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

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).

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

From Tennessee v. Garner, to Lange v.

California, this Court’s Jurisprudence since

1985 demonstrates that the Rationale

Underlying United States v. Watson is

Clearly Erroneous . . . . . . . . . . . . . . . . . . . . . . 6

II.

There is Significant Historical Support for

the Conclusion that Mr. Jordan’s

Warrantless Arrest Violated Common-Law

Principles and the Original Meaning of the

Fourth Amendment . . . . . . . . . . . . . . . . . . . . 10

III.

Overruling Watson Would Not Unduly

Burden Law Enforcement . . . . . . . . . . . . . . . 13

IV.

The Questions Presented Are Exceptionally

Important. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

TABLE OF AUTHORITIES

CASES

Arizona v. Gant,

556 U.S. 332 (2009). . . . . . . . . . . . . . . . . . . . . . . 16

Atwater v. City of Lago Vista,

532 U.S. 318 (2001). . . . . . . . . . . . . . 10, 11, 12, 13

Brown v. Polk Cty.¸

141 S. Ct. 1304 (2021). . . . . . . . . . . . . . . . . . . . . 17

Collins v. Virginia,

138 S. Ct. 1663 (2018). . . . . . . . . . . . . . . . . . . . . 16

Elk v. United States,

177 U.S. 529 (1900). . . . . . . . . . . . . . . . . 10, 12, 13

Gerstein v. Pugh,

420 U.S. 103 (1975). . . . . . . . . . . . . . . . . . . . . . . 13

Johnson v. United States,

333 U.S. 10 (1948). . . . . . . . . . . . . . . . . . . . . . . . 18

Johnson v. United States,

559 U.S. 133 (2010). . . . . . . . . . . . . . . . . . . 4, 7, 10

Kentucky v. King,

563 U.S. 452 (2011). . . . . . . . . . . . . . . . . . . . . . . 15

Kurtz v. Moffitt,

115 U.S. 487 (1885). . . . . . . . . . . . . . . . . 11, 12, 13

Lange v. California,

141 S. Ct. 2011 (2021). . . . . . . . . . . . . . . . . passim

Maryland v. Pringle,

540 U.S. 366 (2003). . . . . . . . . . . . . . . . . . . . . . . . 8

iv

Missouri v. McNeely,

569 U.S. 141 (2013). . . . . . . . . . . . . . . . . . . . 14, 15

Nieves v. Bartlett,

139 S. Ct. 1715 (2019). . . . . . . . . . . . . . . . . . . . . 17

Pow v. Beckner,

3 Ind. 475 (1852) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Queen v. Tooley,

2 Ld. Raym. 1296, 92 Eng. Rep. 349

(Q. B. 1710) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Riley v. California,

573 U.S. 373 (2014). . . . . . . . . . . . . . . . . . . . . . . 15

State v. Chauvin,

27-CR-20-12646 (Hennepin County, MN) . . . . . 18

Tennessee v. Garner,

471 U.S. 1 (1985). . . . . . . . . . . . . . . . . . . . . passim

United States v. Carloss,

818 F.3d 988 (10th Cir. 2016) . . . . . . . . . . . 15, 18

United States v. Johnson,

333 U.S. 10 (1947). . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Jones,

565 U.S. 400 (2012). . . . . . . . . . . . . . . . . . . . . 9, 16

United States v. Watson,

423 U.S. 411 (1976). . . . . . . . . . . . . . . . . . . passim

Utah v. Strieff,

579 U.S. 232 (2016). . . . . . . . . . . . . . . . . . . . . . . 18

v

Virginia v. Moore,

553 U.S. 164 (2008). . . . . . . . . . . . . . . . . 7, 8, 9, 10

Welsh v. Wisconsin,

466 U.S. 740 (1984). . . . . . . . . . . . . . . . . . . . . . . 11

CONSTITUTION AND STATUTES

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . passim

O.R.C. 2929.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

RULES

Fed. R. Crim. P. 4.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 4

OTHER AUTHORITIES

1 J. Bishop, New Criminal Procedure § 183 . . . . . . 13

1 W. Russell, Crimes and Misdemeanors 725 (7th

ed. 1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3 Commentaries on the Constitution of the United

States § 1895 (1833) . . . . . . . . . . . . . . . . . . . . . 7, 8

3 W. LaFave, Search and Seizure § 5.1(b)

(1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

J. Beale, Criminal Pleading and Practice § 21

(1899). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

W. Clark, Handbook of Criminal Procedure § 12 . . 12

J. Landynski, Search and Seizure and the Supreme

Court (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Lange v. California, Docket Number: 20-18, Tr. of

Oral Arg 52-53 (Gorsuch, J.) . . . . . . . . . . . . . . 6, 9

vi

Harvey A. Silverglate, Three Felonies a Day: How

the Feds Target the Innocent (2011) . . . . . . . . . . 17

H.L. Wilgus, Arrest Without a Warrant, 22 Mich. L.

Rev. 541 (1924) . . . . . . . . . . . . . . . . . . . . . . . 12, 17

1

INTEREST OF AMICI CURIAE1

The Office of the Cuyahoga County Public Defender

is legal counsel to nearly half of all indigent persons

charged with criminal offenses in Ohio’s most populous

county. The Office of the Ohio Public Defender (OPD)

is a state agency established to represent indigent

criminal defendants and to coordinate criminal-defense

efforts throughout Ohio. The primary mission of the

OPD is to protect and defend the rights of indigent

persons by providing and supporting superior

representation in the criminal and juvenile justice

systems. The Ohio Association of Criminal Defense

Lawyers (OACDL) is an organization of over 600 duespaying attorney members. Its primary mission is to

defend the rights secured by law of persons accused or

convicted of the commission of a criminal offense.

Together, your Amici provide legal representation

to a substantial majority of juveniles and adults

accused of criminal offenses in the State of Ohio. These

organizations offer this Court the perspective of

experienced practitioners who routinely handle

criminal cases in Ohio courts. This work includes

representation at both the trial and appellate levels.

Your Amici have an interest in the present case

1

In accordance with Supreme Court Rule 37.6, undersigned

counsel certifies that no counsel for any party authored, in whole

or in part, any aspect of this brief. Further, no person or entity,

other than amici curiae, made a monetary contribution to the

preparation or submission of this brief. All parties were given

timely notice regarding the intent to file this brief. Written notice

of consent to file this brief of amici was given by the counsel of

record to each party in this case.

2

because construing the Fourth Amendment in such a

way that it provides less protection than that

guaranteed at common law erodes our clients’ liberty.

Under the circumstances, a large number of Amici’s

present and future clients will be directly impacted by

the outcome of the present litigation.

SUMMARY OF THE ARGUMENT

New wine should not be poured into old wineskins.

And new concepts of what constitutes a felony offense

should not be poured into this Court’s old jurisprudence

regarding warrantless felony arrests as set forth in

United States v. Watson. Watson’s bright line of

permitting law enforcement to arrest when there is

probable cause to believe a felony has been committed

is almost a half-century old. And in that half-century,

there have been two significant developments that

undermine Watson’s continued viability as a reasonable

balance between the rights of the individual and the

needs of law enforcement.

First, the number of offenses that constitute

“felonies” continues to grow. For example, a person who

possesses a small quantity of marijuana and who has

a prior conviction for a similar offense commits a felony

violation of Title 21 U.S.C. § 844(a), the federal drug

possession statute. Various felony offenses have been

created under federal or state laws that are specific

forms of what were previously misdemeanor offenses.

In other cases, repeat offenders who previously looked

at a second misdemeanor now find themselves indicted

for felonies. Moreover, in some states, including Ohio,

the traditional “year and a day” rule that distinguished

felonies from misdemeanors has been replaced by

3

lower-level “felonies” punishable by a term of

imprisonment that does not exceed one year. See

O.R.C. 2929.14 (fifth-degree felony punishable by

between six months and one-year of imprisonment).

This Court has recognized the phenomenon of the

expanding felony class:

At common law, the terms “felony” and

“misdemeanor” did not have the same meaning

as they do today. At that time, imprisonment as

a form of punishment was rare, see Apprendi v.

New Jersey, 530 U.S. 466, 480, n. 7, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000; most *150 felonies

were punishable by death, see Tennessee v.

Garner, 471 U.S. 1, 13, 105 S.Ct. 1694, 85

L.Ed.2d 1 (1985; and many very serious crimes,

such as kidnaping and assault with the intent to

murder or rape, were categorized as

misdemeanors, see United States v. Watson, 423

U.S. 411, 439–440, 96 S.Ct. 820, 46 L.Ed.2d 598

(1976 (Marshall, J., dissenting). Since that time,

however, the term “felony” has come to mean

any offense punishable by a lengthy term of

imprisonment (commonly more than one year,

see Burgess v. United States, 553 U.S. 124, 130,

128 S.Ct. 1572, 170 L.Ed.2d 478 (2008); the term

“misdemeanor” has been reserved for minor

offenses; and many crimes that were

misdemeanors at common law have been

reclassified as felonies. And when the relevant

language in ACCA was enacted, quite a few

States had felony battery statutes that retained

the common-law definition of “force.” See Fla.

Stat. § 784.07(2)(b) (1987) (making simple

4

battery of a police officer a felony); Idaho Code

§ 18–915(c) (Lexis 1987) (same); **1277

Ill.Rev.Stat., Ch. 38, § 12–4(b)(6) (West 1987)

(same); La. Rev. Stat. Ann. §§ 14:33, 14:43.1

(West 1986) (sexual battery punishable by more

than one year’s imprisonment); N.M. Stat. Ann.

§ 40A–22–23 (1972) (battery of a police officer a

felony); see also Kan. Stat. Ann. § 21–3413(b)

(Supp.1994) (simple battery of corrections

officers a felony).

Johnson v. United States, 559 U.S. 133, 149-150 (2010)

(Alito, J. dissenting).

Second, the ability of law enforcement to secure

arrest warrants from neutral judicial officers has been

greatly enhanced since Gerald Ford was President and

Watson was decided. Telephonic or video-conferenced

warrant review procedures are available between a

patrol officer’s car (or personal cell phone) and a

reviewing magistrate’s laptop (or personal cell phone).

Federal Rule of Criminal Procedure 4.1, providing for

the issuance of warrants via reliable electronic means,

is more than one decade old and electronicallyauthorized warrants are as common place as

electronically-filed court documents. Watson’s

sensitivity to a reasonable arrest procedure that could

be effective in 1976 is now antiquated.

With that antiquation, and with the shift in what is

now a felony, the Watson rule has lost its constitutional

moorings. The warrant requirement, both as to

seizures and searches, was borne out of the Framer’s

inherent skepticism about the ability of law

enforcement to respect individual rights while engaged

5

in the “often competitive enterprise of ferreting out

crime.” United States v. Johnson, 333 U.S. 10, 14

(1947). The Framers wanted neutral and detached

judicial officers to issue warrants. Warrantless arrests

were never to be favored – yet, today they are the

norm.

And Fourth Amendment “seizures” can have an

equally profound impact as Fourth Amendment

“searches” on the individual seized. The direct and

tangible consequences of an arrest can include 48 hours

in jail awaiting a judicial review for probable cause,

several days before appearing for a bond hearing, and

the indignity of a strip search. For many the period of

confinement is long enough to lose one’s job or to have

no one home to care for children, not to mention the

ignominy of being in jail.

In our present era, should police eschew a fiveminute phone call to a magistrate to seek a warrant

and instead effect a warrantless “felony arrest” for an

offense that, as a practical matter, will result in little

or no incarceration? Is the expansion of “felony”

offenses marginalizing the role of the judiciary in the

arrest process to the extent that the Fourth

Amendment’s intent has been violated? The instant

case presents the opportunity for this Court to address

these significant questions.

6

ARGUMENT

I.

From Tennessee v. Garner, to Lange v.

California, this Court’s Jurisprudence

since 1985 demonstrates that the Rationale

Underlying United States v. Watson is

Clearly Erroneous.

[D]ifferent states have different rules about

what a felony is and what a misdemeanor is, and

it would seem odd that the Constitution * * * in

its meaning[ ] would depend upon the

happenstance of positive state law. * * * [W]e

live in a world in which everything has been

criminalized. And some professors have even

opined that there’s not an American alive who

hasn’t committed a felony * * * under some state

law.

[I]n a world like that, why [doesn’t] it make

sense to retreat back to the original meaning of

the Fourth Amendment[.] * * * [W]hy isn’t that

the right approach?

Lange v. California, Docket Number: 20-18, Tr. of Oral

Arg 52-53 (Gorsuch, J.).

As noted above, only last term this Honorable Court

unanimously recognized that the modern day

misdemeanor/felony distinction is inconsistent with

that made at common law. See Lange v. California,

141 S. Ct. 2011, 2023 (2011) (quoting Tennessee v.

Garner, 471 U.S. 1, 13-14 (1985)) (“The felony category

[at common law] was a good deal narrower than now.

Many modern felonies were “classified as

misdemeanors at common law, with the felony label

7

mostly reserved for crimes “punishable by death.”);

Lange, 141 S. Ct. at 2036 (Roberts, J., concurring)

(quoting Garner, 471 U.S. at 14) (“[A]t common law the

‘gulf between the felonies and the minor offences was

broad and deep,’ but today it is ‘minor and often

arbitrary.’”). See also Johnson, 559 U.S. at 149-50

(Alito, J., dissenting) (citing Watson, 423 U.S. at 439-40

(Marshall, J., dissenting)):

At common law, the terms “felony” and

‘misdemeanor’ did not have the same meaning

as they do today. At that time * * * most

felonies were punishable by death * * * and

many very serious crimes, such as a kidnapping

and assault with the intent to murder or rape,

were categorized as misdemeanors. Since that

time, however * * * many crimes that were

misdemeanors at common law have been

reclassified as felonies.

Given the dramatic gulf between the modern day

and common law approaches to categorizing criminal

acts, this Court should not, and generally does not,

“craft[ ] constitutional rules based on the distinction

between modern day misdemeanors and felonies.”

Lange 141 S. Ct. 2011 at 2036 (Roberts, J., concurring);

Virginia v. Moore, 553 U.S. 164, 169 (2008) (“Joseph

Story, among others, saw the Fourth Amendment as

‘little more than the affirmance of a great

constitutional doctrine of the common law[.]’ * * * No

early case or commentary, to our knowledge, suggested

the Amendment was intended to incorporate

subsequently enacted statutes.”) (quoting 3

8

Commentaries on the Constitution of the United States

§ 1895, p 748 (1833).

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

however, this Court did precisely what Lange, Moore,

Garner, and the teachings of Justice Story reveal to be

erroneous: it crafted a constitutional rule regarding

warrantless public arrests based on the distinction

between modern day misdemeanors and felonies. See

423 U.S. at 421 (“The balance struck by the common

law in generally authorizing felony arrests on probable

cause, but without a warrant, has survived

substantially intact.”); see also Maryland v. Pringle,

540 U.S. 366, 370 (2003) (citing Watson, 423 U.S. at

424) (“A warrantless arrest of an individual in a public

place for a felony, or a misdemeanor committed in the

officer’s presence, is consistent with the Fourth

Amendment if the arrest is supported by probable

cause.”). Watson’s holding was unprecedented in this

Court’s jurisprudence. See id. at 427 (Powell, J.,

concurring) (“Today’s decision is the first square

holding that the Fourth Amendment permits a duly

authorized law enforcement officer to make a

warrantless arrest in a public place even though he had

adequate opportunity to procure a warrant * * *.”).

Watson, “in the guise of ‘constitutionalizing’ the

common-law rule” regarding warrantless felony

arrests, “actually [did] away with it altogether” –

apparently, if unintentionally, “accord[ing]

constitutional status to a distinction that can be readily

changed by legislative fiat.” Watson, 423 U.S. 411 at

454 (Marshall, J. dissenting). In other words, if the

constitutional protections against warrantless arrest

are wholly conditioned on the non-felony status of an

9

offense such that they can be nullified with the stroke

of a pen, then they are no constitutional protections at

all.

The Fourth Amendment “must provide at a

minimum the degree of protection it afforded when it

was adopted.” Lange, 141 S. Ct. at 2022 (quoting

United States v. Jones, 565 U.S. 400, 411 (2012).

Watson not only failed to apply this principle; it got it

backwards. Pursuant to Lange and Jones, this Court

should treat whatever protections were afforded to

persons accused of those offenses classified as

misdemeanors at common law as the minimum level of

protection to be afforded to be substantively analogous

offenses today – regardless of their modern legislative

classification. Instead, however, Watson had the

impermissible effect of “incorporat[ing] subsequently

enacted statutes” into the Fourth Amendment,

effectively inviting legislatures to water down rights

that would have been afforded at common law via the

“happenstance of positive state law.” See Moore, 553

U.S. at 169; Lange, Tr. of Oral Arg 52-53. By holding

warrantless public felony arrests to be permissible per

se regardless of whether the offense of arrest would

have been treated as a felony at common law, Watson

treats the common law protection against warrantless

public arrests as the ceiling rather than the floor. “In

short,” like Tennessee’s fleeing felon rule held

unconstitutional in Garner, “though the common-law

pedigree of” the Watson “rule is pure on its face,”

changes in the modern “context mean the rule is

distorted almost beyond recognition when literally

applied.” Garner, 471 U.S. at 15.

10

Since 1985, at least fifteen justices of this Court –

including all nine current justices and the author of

Watson – have written or joined opinions rejecting the

rationale upon which Watson’s holding is grounded.

See Lange, 141 S. Ct. at 2023; id. at 2036 (Roberts, J.,

concurring); Johnson v. United States, 559 U.S. at 14950 (Alito, J., dissenting); Garner, 471 U.S. at 13-15.

The time has come for this Court to reconsider Watson.

II.

There is Significant Historical Support for

the Conclusion that Mr. Jordan’s

Warrantless Arrest Violated Common-Law

Principles and the Original Meaning of the

Fourth Amendment.

While the thirty-seven years of jurisprudence

between Garner and Lange illustrates that Watson’s

holding rests upon an erroneous rationale, this Court

has not recently spoken on the permissibility of

warrantless arrests for offenses committed outside the

presence of law enforcement and in the absence of

exigent circumstances. Mr. Jordan’s case is an

excellent vehicle for this Court to both reconsider

Watson and address the related question left for

another day in Atwater v. City of Lago Vista, 532 U.S.

318, 340 n. 11 (2001) and Moore, 553 U.S. at 176, 178:

What limit does the Fourth Amendment place upon law

enforcement’s authority to undertake a warrantless

arrest for offenses committed outside the officer’s

presence? See Elk v. United States, 177 U.S. 529, 534

(1900) (“[A]n officer, at common law, was not

authorized to make an arrest without a warrant, for a

mere misdemeanor not committed in his presence.”);

11

Kurtz v. Moffitt, 115 U.S. 487, 498-99 (1885) (internal

citations omitted):

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, and then only for the purpose of

bringing the offender before a civil magistrate.

1 Hale P.C. 587-590; 2 Hale P.C. 76-81; 4 Bl.

Com. 292, 293, 296; Wright v. Court, 6 D. & R.

623; S.C., 4 B. & C. 596. No crime was

considered a felony which did not occasion a

total forfeiture of the offender’s lands, or goods,

or both.

The Court’s discussion of the common-law history in

Atwater is explicitly not dispositive of this issue. While

the Atwater Court found “disagreement, not unanimity”

regarding whether history supported the petitioner’s

assertion of a limited misdemeanor arrest authority at

common-law, 532 U.S. at 332, the Court’s analysis in

Atwater was specifically undertaken with an eye to the

constitutionality of arrests for offenses committed in an

officer’s presence. See id. (“We need not, and thus do

not, speculate whether the Fourth amendment entails

an ‘in the presence’ requirement for purposes of

misdemeanor arrests.”) (citing Welsh v. Wisconsin, 466

U.S. 740, 756 (1984) (White, J., dissenting)). Similarly,

this Court’s pre-Atwater jurisprudence on the issue of

warrantless misdemeanor arrests has generally

“focused on the circumstance that an offense was

committed in an officer’s presence[.]” See Atwater, 532

12

U.S. at 340 (collecting authorities); but see Elk and

Kurtz, supra.

The Atwater decision acknowledged that “there are

certainly eminent authorities supporting” the

petitioner’s assertion of a broader warrantless arrest

protection than the Court ultimately found. 532 U.S. at

329 (citing, e.g., Queen v. Tooley, 2 Ld. Raym. 1296,

1301, 92 Eng. Rep. 349, 352 (Q. B. 1710) (“[A] constable

cannot arrest, but when he sees an actual breach of the

peace; and if the affray be over, he cannot arrest”).

And even amongst those authorities that the Court

relied on in rejecting Atwater’s position, the lion’s

share of such authorities appear to affirm the commonlaw warrantless misdemeanor arrest power only as to

offenses committed in an officer’s presence. Atwater,

532 U.S. at 330-345. For example, the Atwater Court

relied heavily on the existence of the “nightwalker”

statutes which, while supportive of Atwater’s breachof-the-peace analysis, do not support an understanding

that this authority extends to offenses committed

outside an officer’s presence. 532 U.S. at 333. Beyond

the nightwalker statutes, the Court cited numerous

authorities which explicitly tied warrantless arrest

authority to the commission of the offense in the

presence of law enforcement. See id. at 331 (citing 1 W.

Russell, Crimes and Misdemeanors 725 (7th ed. 1909));

532 U.S. at 336 (citing J. Landynski, Search and

Seizure and the Supreme Court, 19-48 (1966), p. 45);

532 U.S. at 341 (citing Pow v. Beckner, 3 Ind. 475, 478

(1852)); 532 U.S. at 343 (citing Wilgus, Arrest Without

a Warrant, 22 Mich. L. Rev. 541, 550, and n.54 (1924));

532 U.S. at 344 (citing W. Clark, Handbook of Criminal

Procedure § 12, p. 50; J. Beale, Criminal Pleading and

13

Practice § 21, p. 20, and n. 7 (1899); 1 J. Bishop, New

Criminal Procedure §§ 183, at 103)); 532 U.S. at 345

(citing 3 W. LaFave, Search and Seizure § 5.1(b), pp.

13-14 and n. 76 (1996)).

In short, Atwater not only leaves open the questions

Mr. Jordan here presents, but it further demonstrates

substantial historical support for the conclusion that

his warrantless arrest violated common-law principles

and the original meaning of the Fourth Amendment.

See also Elk, 177 U.S. at 534; Kurtz, 115 U.S. at 49899.

III.

Overruling Watson Would Not Unduly

Burden Law Enforcement.

While this Court is obligated to enforce, at a

minimum, those protections afforded by the Fourth

Amendment at the Founding, see Lange, 141 S. Ct. at

2022, beyond its misguided common law analysis, the

Watson Court was clearly animated by practical

concerns. See 423 U.S. at 417 (quoting Gerstein v.

Pugh, 420 U.S. 103 (1975)) (expressing concern about

creating “an intolerable handicap for legitimate law

enforcement”); Watson, 423 U.S. at 431 (Powell, J.,

concurring) (“[A] constitutional rule permitting felony

arrests only with a warrant or in exigent circumstances

could severely hamper effective law enforcement.”). For

several reasons, Mr. Jordan’s proposed rule would not

unduly burden law enforcement.

First, the rule proposed by Mr. Jordan would have

no impact on law enforcement’s ability to conduct

warrantless arrests for offenses committed in their

presence.

14

Second, technological advances since 1976 have, in

many circumstances, drastically increased the speed

and convenience with which warrants may be obtained.

See Missouri v. McNeely, 569 U.S. 141, 154-155 (2013);

id. at 172-73 (Roberts, J., concurring in part and

dissenting in part) (internal citations omitted):

[P]olice can often request warrants rather

quickly these days. At least 30 States provide

for electronic warrant applications. * * * In

many States, a police officer can call a judge,

convey the necessary information, and be

authorized to affix the judge’s signature to a

warrant. * * * Judges have been known to issue

warrants in as little as five minutes. * * * And

in one county in Kansas, police officers can eemail warrant requests to judges’ iPads; judges

have signed such warrants and e-mailed them

back to officers in less than 15 minutes.

To be sure, technology does not completely eliminate all

delays in the warrant-application process. McNeely,

569 U.S. at 155.

Still, given the technological

“advances in the [46] years since [Watson] was decided

that allow for the more expeditious processing of

warrant applications,” overruling Watson’s per se rule

would today significantly reduce the burden on law

enforcement compared to that contemplated in 1976.

See id. at 154.

Third, this Court’s robust, expansive, and “wellestablished” exigent circumstances doctrine would still

justify warrantless public arrests for offenses

committed outside the presence of law enforcement in

cases where a compelling need for immediate arrest

15

genuinely exists. See Kentucky v. King, 563 U.S. 452,

461-62 (2011); Riley v. California, 573 U.S. 373, 402

(2014) (“In light of the availability of the exigent

circumstances exception, there is no reason to believe

that law enforcement officers will not be able to

address some of the more extreme hypotheticals that

[may be] suggested[.]”; United States v. Carloss, 818

F.3d 988, 1007 n. 5 (10th Cir. 2016) (Gorsuch, J.,

dissenting) (rejecting policy-based Fourth Amendment

argument inconsistent with the original meaning of the

Fourth Amendment and noting that application of the

exigent circumstances doctrine would adequately

address the policy concerns). And, to the extent that

some law enforcement agencies lack access to the

technological advances in securing warrants referenced

above, the relative difficulty of securing a warrant

remains “relevant to an assessment of exigency.”

McNeely, 569 U.S. at 155.

Fourth, recognizing constitutional rights inevitably

results in practical difficulties. Watson, 423 U.S. at 452

n. 19 (Marshall, J., dissenting). But this reality can

never be enough to trump protections the Fourth

Amendment guarantees. Otherwise, “[w]e would

quickly lose all protection if it could successfully be

argued that its guarantees should be ignored because

if they were recognized our citizens would begin to

assert them”; see also Riley, 573 U.S. at 401 (“Privacy

comes at a cost.”).

16

IV.

The Questions Presented Are Exceptionally

Important.

Only after Watson was erroneously decided did this

Court explicitly recognize that the Fourth Amendment

“must provide at a minimum the degree of protection it

afforded when it was adopted.” Lange, 141 S. Ct. at

2022 (quoting Jones, 565 U.S. 400, 411 (2012)).

Relatedly, this Court has in recent years rejected

broad, per se categorical exceptions to warrant

requirements, instead favoring case-specific

reasonableness determinations. See Lange, 141 S. Ct.

at 2016; Arizona v. Gant, 556 U.S. 332, 343 (2009)

(noting that exceptions to the warrant requirement

must be “tether[ed]” to “the justifications underlying

the * * * exception”); Collins v. Virginia, 138 S. Ct.

1663, 1672-73 (2018) (cautioning that courts must not

“unmoor [warrant] exception[s] from [their]

justifications * * * and transform what was meant to be

an exception into a tool with far broader application”).

While Gant and Collins were primarily concerned with

warrantless searches rather than seizures, there is no

reason their rationale should not apply to arrests under

circumstances that would have required a warrant at

common law. See Watson, 423 U.S. at 427, 429 (Powell,

J., concurring) (noting the anomalous nature of Watson

and that “[l]ogic * * * would seem to dictate that

arrests be subject to the warrant requirement at least

to the same extent as searches” but concurring in

judgment based upon “the historical sanction accorded

warrantless felony arrests.”).

The more severe classification of criminal offenses

during the past fifty years only exacerbates the

17

problem: Today’s “felonies” are not only

indistinguishable from many common-law

misdemeanors, they are often far more benign than

even the “felony” offenses that Watson subjected to its

bright-line no-warrant-required rule. While the

allegations that prompted Mr. Jordan’s arrest

happened to be burglary, today, “criminal laws have

grown so exuberantly and come to cover so much

previously innocent conduct that almost anyone can be

arrested for something.” Brown v. Polk Cty.¸141 S. Ct.

1304, 1306 (2021) (Sotomayor, J., concurring in denial

of certiorari) (quoting Nieves v. Bartlett, 139 S. Ct.

1715, 1730 (2019) (Gorsuch, J., concurring in part and

dissenting in part)); see also Garner, 471 U.S. at 15

(citing H.L. Wilgus, Arrest Without a Warrant, 22

Mich.L.Rev. 541, 572-73 (1924)) (“Many crimes

classified as misdemeanors, or nonexistent, at common

law are now felonies.”); Harvey A. Silverglate, Three

Felonies a Day: How the Feds Target the Innocent

(2011), p. xxxvi:

[F]ederal criminal laws have become

dangerously disconnected from the English

common law tradition and its insistence on fair

notice, so prosecutors can find some arguable

federal crime to apply to just about any one of

us, even for the most seemingly innocuous

conduct * * *.

A study by the Federalist Society reported that,

by the year 2007, the U.S. Code * * * contained

more than 4,450 criminal offenses, up from

3,000 in 1980. Even this figure understates the

challenge facing honest, law-abiding citizens.

18

LeAndre Jordan’s warrantless arrest at gunpoint

“warn[s] us that no one can breathe in this

atmosphere.” See Utah v. Strieff, 579 U.S. 232, 254

(2016) (Sotomayor, J., dissenting).

In many

circumstances, such arrests amount to far more than a

mere “indignity” – see id. at 252; in some cases, they

can be deadly. See State v. Chauvin, 27-CR-20-12646

(Hennepin County, MN) (wherein defendant was

convicted of felony murder in the process of effecting a

warrantless arrest upon Mr. George Floyd following the

report of an offense allegedly committed outside the

presence of law enforcement).

In light of the ever-expanding reach of both federal

and state criminal codes, and the correspondingly

massive liberty interests implicated by Watson’s carte

blanche sanctioning of arrest authority in the absence

of judicial oversight, the questions Mr. Jordan’s case

presents are exceptionally important. This Court

should grant certiorari to reconcile its conflicted Fourth

Amendment jurisprudence and ensure that the

“citizen[s] of [our] democracy” are treated as worthy of

protection, “at a minimum, * * * to the same degree the

common law protected the people” – rather than as

“subject[s] of a carceral state, just waiting to be

cataloged” by “zealous officers * * * engaged in the

often competitive enterprise of ferreting out crime.”

See Carloss, 818 F.3d at1006 (10th Cir. 2016) (Gorsuch,

J. dissenting); Strieff, 579 U.S. at 254 (2016)

(Sotomayor, J., dissenting); Johnson v. United States,

333 U.S. 10, 13-14 (1948).

19

CONCLUSION

For these reasons, amici curiae respectfully urge

this Court to grant the Writ of Certiorari to the Ohio

Supreme Court filed by Petitioner LeAndre Jordan.

Respectfully Submitted,

JEFFREY M. GAMSO

LAW OFFICE OF

JEFFREY M. GAMSO

1252 Homestead Road

South Euclid, Ohio 44121

(419)340-4600

Counsel for Ohio

Association of Criminal

Defense Lawyers

OFFICE OF THE OHIO

PUBLIC DEFENDER

250 East Broad Street,

Suite 1400

Columbus, Ohio 43215

ERIKA B. CUNLIFFE

Counsel of Record

ASSISTANT PUBLIC DEFENDER

CUYAHOGA COUNTY PUBLIC

DEFENDER’S OFFICE

310 Lakeside Avenue,

Suite 200

Cleveland, Ohio 44113

(216) 443-7583

ecunliffe@cuyahogacounty.us

Counsel for Amici Curiae