Petition for Writ of Certiorari — Victor Javier Grandia Gonzalez, Petitioner v. United States
Supreme Court briefSep 16, 2024
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No. ____
IN THE
Supreme Court of the United States
______________
VICTOR GRANDIA GONZALEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
______________
PETITION FOR A WRIT OF CERTIORARI
______________
HECTOR A. DOPICO
INTERIM FEDERAL PUBLIC DEFENDER
ANDREW L. ADLER
Counsel of Record
ASHLEY D. KAY
ASS’T FED. PUBLIC DEFENDERS
1 E. Broward Blvd., Ste. 1100
Ft. Lauderdale, FL 33301
(954) 356-7436
Andrew_Adler@fd.org
Counsel for Petitioner
September 16th, 2024
QUESTION PRESENTED
In four precedents between 1885 and 1976, this Court recognized the “ancient
common-law rule” that an officer could make a warrantless arrest for a misdemeanor
only if the offense was committed in his presence. United States v. Watson, 423 U.S.
411, 418 (1976); see Carroll v. United States, 267 U.S. 132, 156–57 (1925); John Bad
Elk v. United States, 177 U.S. 529, 534–35 (1900); Kurtz v. Moffitt, 115 U.S. 487, 498–
99 (1885). Citing these precedents, the Court in Atwater v. City of Lago Vista, 532
U.S. 318 (2001) referred to that common-law rule yet again. Id. at 340–41. But, in a
footnote, the Court declined to “speculate whether the Fourth Amendment entails an
‘in the presence’ requirement for purposes of misdemeanor arrests.” Id. at 340 n.11.
After Atwater, the Court has stated that the common law provides the “baseline for
our own day,” such that the Fourth “Amendment ‘must provide at a minimum the
degree of protection it afforded when it was adopted.’” Lange v. California, 594 U.S.
295, 309 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)).
The question presented is the one left open in Atwater:
Whether a warrantless arrest for a misdemeanor offense violates the Fourth
Amendment where the offense did not occur in the presence of an officer.
i
RELATED PROCEEDINGS
The following proceedings are related under this Court’s Rule 14.1(b)(iii):
United States v. Grandia Gonzalez, No. 23-10578 (11th Cir. July 19, 2024);
United States v. Grandia Gonzalez, No. 22-cr-20314 (S.D. Fla. Feb. 10,
2023).
ii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
RELATED PROCEEDINGS.......................................................................................... ii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1
INTRODUCTION .......................................................................................................... 2
STATEMENT ................................................................................................................. 3
A. Facts .................................................................................................................. 3
B. District Court Proceedings ............................................................................... 5
C. Appellate Proceedings....................................................................................... 6
REASONS FOR GRANTING THE PETITION .......................................................... 10
I.
The decision below contravenes this Court’s precedent ................................ 10
II. The question presented is important and recurring ..................................... 20
III. This case is an ideal vehicle. .......................................................................... 25
CONCLUSION............................................................................................................. 28
iii
TABLE OF APPENDICES
Appendix A: Opinion by the U.S. Court of Appeals
for the Eleventh Circuit (July 19, 2024) ................................................ 1a
Appendix B: Judgment in a Criminal Case by the U.S. Distirct Court
for the Southern District of Florida (Feb. 10, 2023) ........................... 24a
iv
TABLE OF AUTHORITIES
Cases
Atwater v. City of Lago Vista,
532 U.S. 318 (2001) ........................................................... i, 2–3, 8, 13, 16–18, 20–21
Carroll v. United States,
267 U.S. 132 (1925) ......................................................................... i, 8, 11–13, 15, 18
Ex Parte Rhodes,
79 So. 462 (Ala. 1918) ............................................................................................... 24
Gamble v. United States,
587 U.S. 678 (2019) .................................................................................................. 22
Graves v. Mahoning,
821 F.3d 772 (6th Cir. 2016) .............................................................................. 18, 21
In re Kellam,
41 P. 960 (Kan. 1895) ............................................................................................... 24
John Bad Elk v. United States,
177 U.S. 529 (1900) ................................................................... i, 8, 11, 13, 15–16, 18
Kurtz v. Moffitt,
115 U.S. 487 (1885) ............................................................................... i, 8, 10–13, 18
Lange v. California,
594 U.S. 295 (2021) ..................................................................................... i, 7, 14, 19
Mallory v. Norfolk S. Ry. Co.,
600 U.S. 122 (2023) .................................................................................................. 20
Maryland v. Pringle,
540 U.S. 366 (2003) ........................................................................................ 8, 17, 20
Orick v. State,
105 So. 465 (Miss. 1925) ........................................................................................... 24
v
Payton v. New York,
445 U.S. 573 (1980) .................................................................................................. 13
People v. Donaldson,
42 Cal. Rptr. 2d 314 (Cal. Ct. App. 1995) ................................................................ 23
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989) .................................................................................................. 20
State v. Ecker,
311 So.2d 104 (Fla. 1975) ......................................................................................... 28
State v. Harker,
240 P.3d 780, 782 (Utah 2010) ........................................................................... 23–24
State v. Walker,
138 P.3d 113 (Wash. 2006) ....................................................................................... 24
Street v. Surdyka,
492 F.2d 368 (4th Cir. 1974) .......................................................................... 9, 18–19
Trupiano v. United States,
334 U.S. 699 (1948) ............................................................................................ 12, 18
United States v. Jones,
565 U.S. 400 (2012) ................................................................................... i, 13–14, 17
United States v. Watson,
423 U.S. 411 (1976) ......................................................................... i, 8, 12–13, 19–21
Virginia v. Moore,
553 U.S. 164 (2008) ................................................................................ 17–18, 20, 24
Welsh v. Wisconsin,
466 U.S. 740 (1984) ...................................................................................... 16, 18–19
vi
Statutes
18 U.S.C.
§ 1708 .......................................................................................................................... 5
§ 3052 ........................................................................................................................ 21
§ 3053 ........................................................................................................................ 21
28 U.S.C. § 1254(1) ........................................................................................................ 1
Fla. Stat.
§ 812.014 ................................................................................................................... 23
§ 856.021 ............................................................................................................... 4, 28
Other Authorities
Thomas Y. Davies,
Recovering the Original Fourth Amendment,
98 Mich. L. Rev. 547 (1999) ...................................................................................... 15
Wayne R. LaFave,
3 Search & Seizure § 5.1(c) (6th ed. Mar. 2024 update) ......................................... 21
William A. Schroeder,
Warrantless Misdemeanor Arrests and the Fourth Amendment,
50 Mo. L. Rev. 771 (1993) ................................................................................... 22, 24
vii
IN THE
Supreme Court of the United States
______________
VICTOR GRANDIA GONZALEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
______________
PETITION FOR A WRIT OF CERTIORARI
Petitioner Victor Grandia Gonzalez respectfully seeks a writ of certiorari to
review a judgment issued by the U.S. Court of Appeals for the Eleventh Circuit.
OPINIONS BELOW
The Eleventh Circuit’s opinion is published at 107 F.4th 1304 and reproduced
as Appendix (“App.”) A, 1a–23a. The district court did not issue a written opinion.
JURISDICTION
The Eleventh Circuit issued its decision on July 19, 2024. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the U.S. Constitution provides in full:
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.
1
INTRODUCTION
In Atwater v. City of Lago Vista, 532 U.S. 318, 340 n.11 (2001), the Court left
open the question presented here: whether the Fourth Amendment contains an inthe-presence requirement for warrantless misdemeanor arrests. This Court’s
precedent now compels an affirmative answer. After Atwater, the Court has explained
that the Fourth Amendment cannot be less protective than the common law at the
Founding. And no less than five of this Court’s precedents—stretching back well over
a century—have explained that the common law had an in-the-presence requirement.
Joining six other circuits, however, the Eleventh Circuit below held that the
Fourth Amendment does not contain such a requirement. Notwithstanding this
Court’s precedent, it believed that the common law was unclear. That court therefore
dismissed history and substituted its own view of what was reasonable. This Court
should not allow lower courts to discard the common law and this Court’s precedent.
The question presented is otherwise overdue for resolution. Officers conduct
warrantless arrests for misdemeanor offenses every day, but they have no guidance
from this Court. Filling that void is a legal patchwork of disparity and confusion. For
example, most states retain an in-the-presence requirement. In those states, then,
the admissibility of evidence obtained in violation of that requirement may now turn
on whether a case is charged in state or federal court. This case illustrates that
disparity. Meanwhile, other states have eliminated an in-the-presence requirement,
and state courts of last resort have divided over whether that departure from the
common law is constitutional. This Court should grant review and hold that it is not.
2
This is an ideal vehicle to do so. Procedurally, Petitioner fully preserved his
argument in the lower courts, relying on this Court’s precedent and the common law.
The court of appeals squarely rejected that argument in a published opinion. And the
court of appeals did not affirm on any alternative ground. To the contrary, the court
of appeals stated that, absent any in-the-presence requirement, there likely would
not have been probable cause to support the arrest. Thus, this case squarely tees up
the Fourth Amendment question that this Court reserved 23 years ago in Atwater.
STATEMENT
A.
Facts
The material facts of this case are undisputed. In July 2022, two Miami Dade
police officers were dispatched to a residential neighborhood in response to a report
of a white male casing the area. Officer Sanchez began canvassing the area in his
police vehicle, and he saw a man matching the description. That man was Petitioner.
All Officer Sanchez observed was a man walking down the middle of a public,
residential street. It was 5:22 a.m. Because Petitioner matched the complainant’s
description, the officer stopped him. The officer observed that he was wearing black,
carrying a backpack and water bottle, and had a shiny metal object on his waistband.
Petitioner was sweating as if he had been walking awhile, and he appeared nervous.
The events from that point on were captured on Officer Sanchez’s body-worn
camera. Exiting his police car at a distance, the officer told Petitioner that he just
wanted to ask him some basic questions. The officer then asked if Petitioner lived in
the area and why he was walking around. Petitioner responded that he was living
3
out of his car, which was parked at a restaurant about 8–10 blocks away. Petitioner
further responded that he thought that he was allowed to walk down the street.
As that conversation between Officer Sanchez and Petitioner was occurring,
Officer Exantus met with the complainant. According to the officer’s testimony, the
complainant advised that, while his wife had been walking their dog, she saw a Latin
male with a backpack in black clothing come out of the gate of a neighbor’s house who
was out of town, look into mailboxes, and then conceal himself between cars after
noticing the complainant’s wife. At that point, Officer Exantus learned that Officer
Sanchez had located the suspect, and Exantus proceeded to that nearby location.
Upon his arrival, Officer Exantus first asked Petitioner if he had a weapon; he
responded that he did not. The officer then patted down Petitioner and found a pair
of scissors on his waistband. When asked why he was walking around, Petitioner
responded that he could not sleep. The officers then asked if the man had
identification. Petitioner responded that it was in his car, but he told them his name
and produced a picture of his driver’s license on his phone. In addition to confirming
his name, the license showed an address from another county about 30 minutes away.
At that point, Officer Exantus arrested Petitioner for loitering and prowling, a
misdemeanor offense under Fla. Stat. § 856.021. The officer decided to make the
arrest because he was alarmed based on the complainant’s report of a man looking
into mailboxes. And Petitioner did not dispel that alarm because his identification
showed an address from another county. Officer Exantus then conducted a search
incident to that arrest. In Petitioner’s backpack, the officer found mail addressed to
4
residents in the neighborhood. Petitioner was ultimately charged in federal court
with four counts of possessing stolen mail, a felony offense under 18 U.S.C. § 1708.
B.
District Court Proceedings
Petitioner moved to suppress the evidence discovered as a result of the search
incident to arrest. He argued that the arrest was unlawful because the officers lacked
probable cause of loitering and prowling. His argument proceeded in two parts: 1) the
Fourth Amendment prohibits warrantless arrests for misdemeanor offenses that are
not committed in an officer’s presence; and 2) the only conduct that occurred in an
officer’s presence was Petitioner walking down the street at 5:22 a.m., which was not
loitering and prowling under Florida law. See Dist. Ct. ECF Nos. 23, 34.
In response, the government did not dispute that the Fourth Amendment
contained an in-the-presence requirement for warrantless misdemeanor arrests. But
it argued that there was probable cause based on the complainant’s observations,
which did not occur in an officer’s presence. See Dist. Ct. ECF No. 32 at 3–4.
After the parties reiterated their arguments at the evidentiary hearing, the
district court denied the motion from the bench. Dist. Ct. ECF No. 63 at 92–95. The
district court first agreed that, because loitering and prowling was a misdemeanor, it
“must be committed in the officers’ presence prior to arrest.” Id. at 92. But the court
then proceeded to rely heavily on the complainant’s observations. The court
emphasized that Petitioner matched the complainant’s description of man looking
into mailboxes and concealing himself between cars. The court acknowledged that,
“while that wasn’t the officer’s observation, I believe that the officer can certainly
5
take the information provided to match the description.” Id. at 93–94. Based on that
conduct, observed only by the complainant, the court found probable cause of loitering
and prowling. And it further found that Petitioner did not dispel the officers’ alarm.
Petitioner subsequently entered a written plea agreement, agreeing to plead
guilty to one of the four counts in the indictment. The plea agreement was expressly
conditioned on Petitioner’s right to appeal the denial of his suppression motion. Dist.
Ct. ECF No. 45 at 1–2 ¶¶ 2–3. The district court later sentenced Petitioner to time
served, followed by two years of supervised release. App. 25a–26a. At sentencing, the
court observed that Petitioner had “no criminal history,” had been “battling the
substance abuse” that “directly led to the commission of this offense,” and had made
a “compelling statement” expressing remorse. Dist. Ct. ECF No. 62 at 13–18.
C.
Appellate Proceedings
On appeal, Petitioner reiterated his arguments: 1) the Fourth Amendment
contains an in-the-presence requirement for warrantless misdemeanor arrests; and
2) the only conduct that occurred in an officer’s presence here was Petitioner walking
down the middle of the street at 5:22 a.m., and that conduct did not support probable
cause to arrest for a loitering-and-prowling misdemeanor under Florida law. As to
the Fourth Amendment component, he argued that: a) this Court had repeatedly
recognized that the common law contained an in-the-presence requirement for
warrantless misdemeanor arrests; and b) this Court had more recently stated that
the Fourth Amendment cannot be less protective than the common law was at the
Founding. See Pet. C.A. Initial Br. 15–17, 42–53; Pet. C.A. Reply Br. 1–15.
6
Following oral argument, the Eleventh Circuit affirmed in a published opinion.
The court of appeals determined that, “[s]tripped of the complainant’s
observations, the officers likely lacked probable cause to arrest Gonzalez under
Florida’s prowling statute.” App. 15a. This rendered the arrest “suspect” under
Florida law, which contained an in-the-presence requirement. App. 14a & n.6. But,
the court of appeals continued, “this violation” of Florida law did not necessarily
violate the Fourth Amendment. App. 15a. Accordingly, as the court explained at the
outset, “[t]his case requires us to determine whether the Fourth Amendment contains
an in-the-presence requirement for a warrantless misdemeanor arrest.” App. 2a.
The court of appeals then repeatedly and expressly held that the Fourth
Amendment does not contain such a requirement. App. 2a (“we conclude that while
an in-the-presence observation may be sufficient for a warrantless misdemeanor
arrest, it is not necessary under the Fourth Amendment”); App. 10a (“hold[ing] that
the Fourth Amendment does not require a misdemeanor to occur in an officer’s
presence to conduct a warrantless arrest”); App. 12a (“We find that the Fourth
Amendment does not contain an in-the-presence requirement for all warrantless
misdemeanor arrests.”); App. 16a (“We hold that there is no in-the-presence
requirement for warrantless misdemeanor arrests under the Fourth Amendment.”).
The court of appeals agreed with Petitioner that the analysis must “begin . . .
with the common law.” App. 7a. It also agreed that, under this Court’s precedent, “the
Fourth Amendment ‘must provide at a minimum the degree of protection it afforded
when it was adopted.’” App. 6a (quoting Lange v. California, 594 U.S. 295, 309
7
(2021)). So the court would consider “traditional standards of reasonableness” only if
history did not provide a “conclusive answer.” App 6a–7a. (citation omitted).
The court of appeals also acknowledged that there was support for Petitioner’s
common-law rule. It explained that “formulations” in treatises by Hale, Blackstone,
and Halsbury “tend to suggest that an officer may conduct warrantless arrests for
felonies not committed outside of their presence, while misdemeanors arrests may
not.” App. 7a. And a “string of Supreme Court cases dating back to the nineteenth
century” also “used stark language” to describe that same rule. App. 8a (citing Carroll
v. United States, 267 U.S. 132, 156–57 (1925); United States v. Watson, 423 U.S. 411,
418 (1976); John Bad Elk v. United States, 177 U.S. 529, 534–35 (1900); and Kurtz v.
Moffitt, 115 U.S. 487, 498–99 (1885)). The Eleventh Circuit itself, as well as the
former Fifth Circuit, had recognized that common-law rule too. App. 8a (citing cases).
However, the court of appeals determined that “constitutional jurisprudence
has retreated from this restrictive reading.” App. 9a. The court emphasized that this
Court in Atwater v. City of Lago Vista, 532 U.S. 318 (2001) reserved the Fourth
Amendment question in footnote 11. App. 9a & n.3. And, it thought, this Court had
since “softened” its language, stating that an officer’s presence was constitutionally
sufficient but not necessary. Id. (citing Maryland v. Pringle, 540 U.S. 366, 370 (2003)).
“Perhaps this is why,” the court speculated, all of the circuits to address the
issue had found no in-the-presence requirement. App. 9a–10a. But, the court
acknowledged, only one circuit had devoted “more than a line or two” to the issue. Id.
(quotation omitted). And that circuit, which the others followed, did not dispute the
8
common-law rule but rather found that this Court had never given it “constitutional
force.” App. 10a (citing Street v. Surdyka, 492 F.2d 368, 371–73 (4th Cir. 1974)).
The Eleventh Circuit gave three reasons for expressly joining those circuits.
First, and most relevant here, its “reading of the common law lacks the per se rule
that Gonzalez claims.” App. 11a. The court observed that this Court had once referred
to the common-law rule as the “usual” rule that was “sometimes expressed,” and none
of this Court’s cases “dealt with the issue at bar.” Id. The court of appeals continued
that, as a general matter, statements about the common law of misdemeanor arrests
were “not uniform.” Id. And the court cited Hale for one example where the common
law did not require an officer’s presence. Id. The court concluded that this Court’s
cases contained only “dicta” that should not be “read for more than it is worth.” Id.
Second, and third, the court determined that rejecting an in-the-presence
requirement “accords with traditional standards of reasonableness” in light of the
technical distinctions between felonies and misdemeanors, as well as the law’s
preference for a totality-of-the-circumstances inquiry for probable cause. App. 11a–
12a. Considering the totality of the circumstances here, and “[w]ithout such [an inthe-presence] requirement,” the court concluded that “the officers had probable cause
to arrest Gonzalez for loitering and prowling.” App. 16a. Those circumstances
“include[d] not only the officers’ observations and conversations, but also the
resident’s contemporaneous complaint and Gonzalez’s proximity to the resident’s
home. Taken together,” those circumstances established probable cause that
Petitioner had engaged in loitering and prowling under Florida case law. App. 15a.
9
Writing only for himself, Judge Luck concurred in the judgment. He agreed
with the majority that the common-law rule was not clear-cut. App. 18a–20a, 22a. He
also opined that the rule would not apply here because it would allow officers to arrest
where the misdemeanor partially occurred in their presence, and the “officers
arrested Gonzalez in the middle of loitering and prowling.” App. 17a–18a, 21a–22a.
REASONS FOR GRANTING THE PETITION
Seven courts of appeals are contravening this Court’s precedent and
disregarding our common-law history. The Fourth Amendment question presented is
otherwise important and recurring. And this case offers a perfect vehicle to decide it.
I.
The decision below contravenes this Court’s precedent.
Between 1885 and 2001, this Court has recognized—not once, not twice, but at
least five times—that the common law contained an in-the-presence requirement for
warrantless misdemeanor arrests. And this Court has more recently recognized that
the Fourth Amendment cannot be less protective than the common law was at the
time of the Founding. Taken together, these two lines of precedent resolve the
question presented here. Seven circuits refuse to abide by this Court’s precedent.
1.
Below are this Court’s precedents recognizing the common-law rule.
a.
In Kurtz v. Moffitt, 115 U.S. 487 (1885), the Court expressly identified
the common law rule: “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.” Id. at 498–99 (emphasis added).
10
This was not some passing comment. Rather, the Court cited numerous historical
authorities to support that proposition, including Blackstone, Hale, and two English
cases. Id. at 499. For the next century, the Court repeatedly recognized that the
common law included an in-the-presence requirement for misdemeanor arrests.
b.
The Court did so 15 years later in John Bad Elk v. United States, 177
U.S. 529 (1900). The Court stated that “an officer, at common law, was not authorized
to make an arrest without a warrant, for a mere misdemeanor not committed in his
presence.” Id. at 534. For support, the Court cited five treatises and five cases. Id.
at 534–35. Referencing a South Dakota statute, the Court further observed that “the
common law is therein substantially enacted.” Id. at 535. In the margin, the Court
quoted the statute, which authorized arrests “[f]or a public offense committed or
attempted in his presence” and arrests “[w]hen the person arrested has committed a
felony, although not in his presence.” Id. at 535 n.†. Under the common law, then,
there was an in-the-presence requirement for misdemeanors but not for felonies.
c.
The Court reiterated that understanding 25 years later in Carroll v.
United States, 267 U.S. 132 (1925). The Court stated: “The usual [common law] rule
is that a police officer may arrest without warrant one believed by the officer upon
reasonable cause to have been guilty of a felony, and that he may only arrest without
a warrant one guilty of a misdemeanor if committed in his presence.” Id. at 156–57.
In so stating, the Court cited both Kurtz and Bad Elk. Id. at 157. And the Court block
quoted a reformulation of the same common-law rule from Halsbury’s treatise. Id.
11
d.
Another quarter-century later, four Justices in dissent reiterated the
common-law rule: “Under the English common law, a police officer had power without
a warrant to arrest persons committing a misdemeanor in the officer’s presence and
persons whom the officer had reasonable cause to believe had committed a felony.”
Trupiano v. United States, 334 U.S. 699, 713 (1948) (Vinson, C.J., dissenting). Chief
Justice Vinson continued: “This rule, which had its origin in the ancient formative
period of the common law, was firmly established at the time of the adoption of the
Fourth Amendment. Since that time it has received general application by state and
federal courts. Indeed, this Court has heretofore given specific recognition to the
rule.” Id. (emphasis added; footnotes omitted). He cited Carroll and Kurtz, as well as
several historical authorities, including Hale and Blackstone. Id. at 713 & nn.4, 6.
e.
Another quarter-century later—and now nearly a full century after
Kurtz—the Court again acknowledged the common-law rule in United States v.
Watson, 423 U.S. 411 (1976). In that case, the Court upheld a federal statute
authorizing warrantless arrests for felonies. In doing so, the Court emphasized that
this practice was consistent with its precedents as well as the common law. Id.
at 416–17. Again citing numerous historical authorities, including Hale and
Blackstone, the Court repeated: “The cases construing the Fourth Amendment thus
reflect the ancient common-law rule 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.” Id. at 418–19. Even the Justices in dissent agreed that “[t]he common law
12
was indeed as the Court states it.” Id. at 439 (Marshall, J., dissenting). A few years
later, the Court quoted with approval Watson’s articulation of the common-law rule,
as well as the authorities it cited. Payton v. New York, 445 U.S. 573, 590 n.30 (1980).
f.
Over twenty years later, the Court reiterated the common-law rule in
Atwater v. City of Lago Vista, 532 U.S. 318 (2001). The Court held that the Fourth
Amendment did not prohibit warrantless arrests for misdemeanors. Id. at 323. The
petitioner argued that warrantless arrests could be made only for misdemeanors
involving breaches of the peace because the common law was so limited. Id. at 326–
27. The Court did not accept petitioner’s historical account of the common law; at
best, the common law was equivocal. See id. at 327–45. In the course of the Court’s
extensive historical analysis, it observed: “Although the Court has not had much to
say about [common law] warrantless misdemeanor arrest authority, what little we
have said” had “focused on the circumstance that an offense was committed in an
officer’s presence, to the omission of any reference to a breach-of-the-peace
limitation.” Id. at 340. For support, the Court favorably cited the statement of the
common-law rule in Watson, Carroll, Bad Elk, and Kurtz. Id. at 340–41. Thus, while
the Court in Atwater ultimately reserved the Fourth Amendment question here, id.
at 340 n.11, it nonetheless reaffirmed its understanding of the common-law rule.
2.
A decade after Atwater, the Court made clear for the first time that the
common law sets the constitutional floor. In United States v. Jones, 565 U.S. 400
(2012), the Court stated that the Fourth Amendment’s “guarantee against
unreasonable searches . . . must provide at a minimum the degree of protection it
13
afforded when it was adopted.” Id. at 411 (emphasis in original). Nearly a decade
later, and in a case about misdemeanors no less, the Court reiterated that
understanding yet again. The Court explained that, in determining what searches
are “reasonable,” “the Framers’ view provides a baseline for our own day: The Fourth
Amendment ‘must provide at a minimum the degree of protection it afforded when it
was adopted.’” Lange v. California, 594 U.S. 295, 309 (2011) (quoting Jones, 565 U.S.
at 411). The upshot is that, where the protections afforded by the common law are
“clear,” those protections are incorporated into the Fourth Amendment itself. Id.
at 309; see id. at 309–13; see also id. at 316 (Thomas, J., concurring in part and
concurring in the judgment) (emphasizing the “rule that history—not court-created
standards of reasonableness—dictates the outcome whenever it provides an answer”).
That is the case here. This Court has repeatedly recognized that the common
law prohibited warrantless misdemeanor arrests unless the offense was committed
in an officer’s presence. And this Court has since made clear that the Fourth
Amendment cannot be less protective than the common law was at the time of the
Founding. As a result, the Fourth Amendment prohibits warrantless misdemeanor
arrests that are not committed in an officer’s presence. That should resolve this case.
3.
In the decision below, however, the Eleventh Circuit ruled otherwise.
The court of appeals agreed with Petitioner that, under this Court’s precedent, the
Fourth Amendment cannot be less protective than the common law. App. 6a–7a. But
the court of appeals concluded that the common law did not clearly contain an in-the-
14
presence-requirement for warrantless misdemeanor arrests. See App. 9a–11a. The
court’s reasons for reaching that conclusion conflict with this Court’s precedent.
a.
The Eleventh Circuit acknowledged that “a string” of this Court’s
precedents had “used stark language” to articulate the common-law rule. App. 8a.
But the court then proceeded to dismiss that language as “dicta.” App. 11a. Not so.
In Carroll, for example, the Court upheld the warrantless search of car based
on probable cause that it contained contraband—the first appearance of the so-called
“automobile exception.” But that doctrinal innovation was necessary only because the
Court recognized that, under the common law, the search could not be upheld as a
search incident to a warrantless arrest. And that was so because the offense was a
misdemeanor not committed in an officer’s presence. Carroll, 267 U.S. at 156–58.
Indeed, the Court acknowledged that, if the seizure could be justified only as a search
incident to arrest, then it would have been invalid. Id. at 158–59; see Thomas Y.
Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 731 &
n.525 (1999) (explaining this aspect of Carroll). Thus, the common-law rule formed a
necessary part of Carroll’s reasoning and constituted part of the Court’s holding.
The same was true in Bad Elk. The Court held that the jury was erroneously
instructed that an officer killed during an arrest had the right to make the arrest,
and that the defendant therefore had no right to resist. The Court explained why that
error was prejudicial: at common law, if a defendant killed an officer who had no right
to make an arrest, then the charge could be reduced from murder to manslaughter.
Id. at 534, 537. It was in that context that the Court explained that “an officer, at
15
common law, was not authorized to make an arrest without a warrant, for a mere
misdemeanor not committed in his presence.” Id. at 534. The Court also found no
statutory authority for the officer to make the arrest in that case, noting that the
state statute had codified the common-law rule. Id. at 535 & n.†. Thus, the statement
of the common-law rule again formed part of the Court’s reasoning there too.
b.
The Eleventh Circuit also thought that this Court had recently
“retreated” from its reading of the common law. App. 9a. The court gave two reasons
for this, but they conflate the common-law rule with the Fourth Amendment question.
First, the court of appeals emphasized that Atwater left open the Fourth
Amendment question. App. 9a. However, this Court still reiterated its understanding
of the common law. When Atwater was decided, the common law was not necessarily
dispositive of the Fourth Amendment question. While this Court had looked to the
common law in pre-Atwater cases, the Court had not yet made clear that the Fourth
Amendment could not be less protective than the common law. But that is clear now.
Moreover, whether the Fourth Amendment incorporated the common law’s inthe-presence rule was not before the Court in Atwater. Plus, Chief Justice Rehnquist
joined Atwater’s bare 5-4 majority, and he had previously taken the view that the
Fourth Amendment did not contain an in-the-presence requirement. Welsh v.
Wisconsin, 466 U.S. 740, 756 (1984) (White, J., joined by Rehnquist, J., dissenting).
The Atwater Court was aware of this, twice citing the Welsh dissent in this part of
the opinion. 532 U.S. at 340 n.11, 341. This dynamic may explain why Atwater
reserved the Fourth Amendment question, even as it reiterated the common-law rule.
16
Second, the court of appeals thought that this Court had “softened” its
language about the common-law rule. App. 9a. But, for support, the Court cited
Maryland v. Pringle, 540 U.S. 366 (2003), which said nothing about the common law
at all. Rather, Pringle merely followed what Atwater had said about minimum
constitutional requirements: a warrantless arrest for a misdemeanor committed in
an officer’s presence “is consistent” with the Fourth Amendment. Pringle, 540 U.S.
at 370; Atwater, 532 U.S. at 354. The Court reiterated that point in Virginia v. Moore,
553 U.S. 164, 171, 176, 178 (2008). But neither Pringle nor Moore said anything about
the common-law rule, much less “softened” the Court’s earlier articulation of it.
Moreover, it is difficult to see how these cases support the Eleventh Circuit’s
Fourth Amendment conclusion. To be sure, they emphasized the importance of
probable cause. But each time they did so, they also included an in-the-presence
qualification. If anything, by carefully and invariably including that qualification,
these cases suggest that a warrantless arrest for a misdemeanor not committed in an
officer’s presence would not be consistent with the Fourth Amendment. At the very
least, though, that question was not presented in Atwater, Pringle or Moore. And all
three of these cases (not just Atwater) preceded Jones, where the Court first made
clear that the Fourth Amendment cannot be less protective than the common law.
c.
Refusing to accept this Court’s articulation of the common-law rule, the
Eleventh Circuit did its own research and purported to find common-law “exceptions
to any generalized presence requirement.” App. 11a. But the only example it cited
was taken from Hale. And this Court has already considered that treatise (twice), and
17
found that it supported (not refuted) a common-law in-the-presence requirement for
warrantless misdemeanor arrests. Watson, 423 U.S. at 418; Kurtz, 115 U.S. at 499;
see also Trupiano, 334 U.S. at 713 n.4 (Vinson, C.J., dissenting). The Eleventh Circuit
should not have second-guessed this Court’s reading of Hale’s treatise or the history
more generally. See Moore, 553 U.S. at 168 n.2 (declining to “revisit” the same
common-law sources that the Court had considered in Atwater). Each time this Court
recognized the common-law rule, it cited numerous historical sources for support:
various treatises (not just Hale), law review articles, and case law. See Watson, 423
U.S. at 418–19; Carroll, 267 U.S. at 157; Bad Elk, 177 U.S. at 534–55; Kurtz, 115 U.S.
at 499; see also Trupiano, 334 U.S. at 713 n.4 (Vinson, C.J., dissenting). In any event,
the only exception to the common law the Eleventh Circuit purported to identify was
for “incontinency crimes”; whatever that might entail, it would not apply to this case.
d.
Finally, the Eleventh Circuit emphasized that several other circuits to
address the question have held that the Fourth Amendment does not contain an inthe-presence requirement for warrantless misdemeanor arrests. App. 9a–10a;
see Graves v. Mahoning, 821 F.3d 772, 778–79 (6th Cir. 2016) (citing cases from the
First, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits). But the Eleventh Circuit
acknowledged that only the Fourth Circuit in Street v. Surdyka, 492 F.2d 368 (4th
Cir. 1974) had “devoted much more than on a line or two to this issue,” and the other
circuits had simply followed suit. App. 9a–10a (quotation omitted). So too did Justice
White in his Welsh dissent, where he opined in one conclusory sentence that an in-
18
the-presence requirement for warrantless misdemeanor warrants was “not grounded
in the Fourth Amendment.” 466 U.S. at 756 (White, J., dissenting) (citing Street).
But Street is unpersuasive. The Fourth Circuit acknowledged (even before
Watson) that this Court had recognized the common-law rule, and the Fourth Circuit
did not dispute that this Court had correctly stated the rule. Street, 492 F.2d at 371
& n.2. Instead, the Fourth Circuit emphasized that this Court had “never given
constitutional force to th[e] [presence] element of the common law rule.” Id. at 371.
However, the Fourth Circuit’s decision came before the advent of originalism and
(decades) before this Court clarified that the Fourth Amendment cannot be less
protective than the common law. Thus, even if Street was persuasive back in 1974, it
is no longer persuasive today. To the contrary, Street casually jettisoned history
because, in its view, the misdemeanor-felony distinction was “no longer as significant
as it was at common law,” and it was “impractical and illogical.” Id. at 372. This Court
recently rejected similar arguments in Lange, relying instead on its precedent and
the common law to constitutionalize the distinction between fleeing misdemeanants
and felons in the context of warrantless home entries. Lange teaches that the lower
courts today may not cast aside precedent and history, only to substitute their own
policy judgments based on “traditional standards of reasonableness.” App. 11a–12a.
*
*
*
“As this Court has explained” time and time again: “‘If a precedent of this
Court has direct application in a case’ . . . , a lower court ‘should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own
19
decisions.’” Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023) (quoting Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). That is
particularly true here, where there are multiple precedents stating the common-law
rule. If this Court has gotten the history so wrong so many times, then it is up to this
Court to say so. Seven circuits are violating this cardinal rule of vertical precedent.
II.
The question presented is important and recurring.
1.
This Court has previously granted certiorari to decide related Fourth
Amendment questions about the warrantless arrest authority. See, e.g., Moore, 553
U.S. at 176, 178 (holding that the violation of a state arrest statute does not
necessarily violate the Fourth Amendment); Atwater, 532 U.S. at 323, 354 (holding
that the Fourth Amendment permits warrantless arrests for misdemeanors other
than for breaches of the peace); Watson, 423 U.S. at 414–24 (upholding federal statute
authorizing warrantless felony arrests). In none of these opinions did the Court note
any conflict among the lower courts. That omission suggests that the issues there
were cert.-worthy because they were important. The same is true of the issue here.
Moreover, as explained below, this Court’s most recent precedents (especially
Moore) have led to some confusion. Atwater, Pringle, and Moore repeatedly stated—
including as part of the formal holdings in Atwater and Moore—that a warrantless
arrest satisfies the Fourth Amendment when there is probable cause to believe that
a misdemeanor has been committed in an officer’s presence. Moore, 553 U.S. at 171,
176, 178; Pringle, 540 U.S. at 370; Atwater, 532 U.S. at 354. But those statements
have led to confusion because they do not address the converse issue: whether a
20
warrantless arrest violates the Fourth Amendment when the misdemeanor has not
been committed in an officer’s presence. It has now been 23 years since this Court in
Atwater reserved that question. The time has come for the Court to decide it at last.
That question is recurring. Indeed, misdemeanor arrests happen every day.
Just at the federal level, moreover, at least seven circuits have addressed the question
presented. The leading appellate decision, Street v. Surdyka, is now 50 years old. And,
more recently, respected lower-court jurists like Judge Sutton have gone out of their
way to observe that the question continues to be an “open question at the Supreme
Court,” with “valid competing arguments that deserve to be addressed.” Graves, 821
F.3d at 778–79. He further noted that Judges Easterbrook and Colloton had “flagged
the issue” as well. Id. at 780 (citing their opinions from 2010 and 1986, respectively).
2.
The legal landscape in the States further bolsters the need for review.
As a matter of state law, “most states hold to the view that a warrantless
misdemeanor arrest may be made only for an offense committed ‘in the presence’” of
an officer. Wayne R. LaFave, 3 Search & Seizure § 5.1(c) (6th ed. Mar. 2024 update).
This Court has recognized this fact. In Watson, the Court acknowledged that the
common-law rule has “been the prevailing rule under state constitutions and
statutes.” 423 U.S. at 419. And, in Atwater, the Court included a statutory appendix
listing warrantless arrest statutes in every state, with the vast majority containing
an in-the-presence requirement. 532 U.S. at 355–60. Federal arrest statutes have one
too. See, e.g., 18 U.S.C. §§ 3052 (FBI), 3053 (Marshals). The predominance of this
requirement is not a coincidence; it reflects and carries forward the common-law rule.
21
But the specifics vary by state. Summarizing the landscape several years ago,
one commentator observed that “[m]ost jurisdictions . . . retain the in-the-presence
rule in some form.” William A. Schroeder, Warrantless Misdemeanor Arrests and the
Fourth Amendment, 50 Mo. L. Rev. 771, 777 (1993). “Many jurisdictions have a
general in-the-presence rule and, in addition, authorize warrantless arrests for
misdemeanors not committed in the arresting officer’s presence if specified
circumstances exist or if the arrest is for specified misdemeanors.” Id. at 777–78 &
nn.12–13 (collecting statutes). Meanwhile, a “few jurisdictions have completely
eliminated the in-the-presence requirement.” Id. at 783 & n.18 (collecting statutes).
a.
In the many states that do have an in-the-presence requirement, the
current landscape produces arbitrary disparities on the ground. In those states,
arrests for misdemeanors that did not occur in an officer’s presence may lead to the
suppression of evidence in an ensuing state prosecution. But the very same evidence,
discovered during the very same arrest, would be deemed admissible in an ensuing
federal prosecution. After all, no federal circuit has deemed such a warrantless
misdemeanor arrest to violate the Fourth Amendment. The admissibility of evidence
may therefore turn entirely (and arbitrarily) on whether a case is brought in state or
federal court. And that decision will be left entirely to local prosecutors. See Gamble
v. United States, 587 U.S. 678 (2019) (reaffirming the “dual-sovereignty” doctrine).
This case provides a perfect example. The Eleventh Circuit acknowledged that
Petitioner’s “arrest is suspect under Florida law.” App. 14a. The court of appeals
explained that Florida law appeared to contain an in-the-presence requirement for
22
misdemeanor arrests. App. 14a & n.6. And it concluded that, “[s]tripped of the
complainant’s observations, the officers likely lacked probable cause to arrest
Gonzalez under Florida’s prowling state” based on the conduct in their presence.
App. 15a. Thus, had Petitioner been prosecuted in state court in Miami, see Fla. Stat.
§ 812.014 (Florida theft statute), the evidence discovered in the search incident to his
arrest would have been suppressed, and the state prosecution could not have gone
forward. See Pet. C.A. Reply Br. 19–20 n.1 (citing Florida cases reversing the denial
of suppression motions due to a lack of probable cause of loitering/prowling). But
because this case was prosecuted across the street in federal court in Miami, the
evidence was admissible. The admissibility of the evidence in this case thus depended
on whether prosecutors decided to charge the case in state or federal court. This Court
alone should be the one to decide whether such intra-state/city disparities continue.
There are also some states that have an in-the-presence requirement, but that
do not suppress evidence obtained in violation of that requirement unless federal law
would also require suppression. See, e.g., State v. Harker, 240 P.3d 780, 782, 784
(Utah 2010); People v. Donaldson, 42 Cal. Rptr. 2d 314, 317 (Cal. Ct. App. 1995). In
those states, then, the enforceability of the state-law, in-the-presence requirement
turns on the Fourth Amendment question here. Thus, resolving that question would
determine whether evidence is admissible not only in federal prosecutions but in
some state prosecutions as well. And if the Fourth Amendment itself does not contain
an in-the-presence requirement, then that will effectively nullify these state laws.
This Court alone should be the final arbiter of this important question of federal law.
23
b.
In the states that have eliminated an in-the-presence requirement, that
break from the common law is unconstitutional for the reasons above. Granting
review would make clear that the Fourth Amendment prohibits such a departure.
But clarity is needed either way because “[t]he judicial response to attempts to
eliminate the in-the-presence requirement has been mixed. Several state courts have
held unconstitutional statutes purporting to authorize warrantless arrests for
misdemeanors not committed in the presence of the arresting officer. Other courts
have upheld statutes that removed the in-the-presence requirement.” Schroeder,
supra, at 790–91 & nn.39–40 (collecting cases). Thus, notwithstanding the uniformity
among the federal circuits, whether such a requirement is constitutionally mandated
has long divided state courts of last resort. That conflict alone warrants review.
That division, moreover, has tracked the fault lines outlined above. In holding
that an in-the-presence requirement is constitutionally mandated, state courts of last
resort have long relied on the common law, including this Court’s precedent
articulating the common-law rule. See, e.g., Orick v. State, 105 So. 465, 469–71 (Miss.
1925); Ex Parte Rhodes, 79 So. 462, 462–63 (Ala. 1918); In re Kellam, 41 P. 960, 961
(Kan. 1895). Meanwhile, state courts more recently taking the opposing view have
done what the Eleventh Circuit did here. They have relied on Street and the
consensus in the federal circuits. See State v. Walker, 138 P.3d 113, 120–21 (Wash.
2006). And they have over-read this Court’s decision in Moore to hold that probable
cause alone satisfies the Fourth Amendment, regardless of whether it is based on
conduct occurring outside of an officer’s presence. See Harker, 240 P.3d at 786–87.
24
III.
This case is an ideal vehicle.
This case is an ideal vehicle because the question presented was preserved
below, was squarely resolved by the Eleventh Circuit, and is dispositive of this case.
1.
There is no dispute that Petitioner fully preserved his argument below.
In the district court, he argued that the arrest was unlawful because loitering and
prowling was a misdemeanor, and that offense did not occur in an officer’s presence.
See Dist. Ct. ECF Nos. 23, 32; Dist. Ct. ECF No. 63 at 55–79. On appeal, Petitioner
reiterated that position. He elaborated that the Fourth Amendment contains an inthe-presence requirement because that was the rule at common law, as this Court
had articulated it, and the Fourth Amendment cannot be less protective than the
common law. See Pet. C.A. Initial Br. 15–17, 42–53; Pet. C.A. Reply Br. 1–15. Because
Petitioner fully preserved his argument in the courts below, there is no risk that
plain-error review would obstruct the Court’s ability to decide the question presented.
2.
The Eleventh Circuit also expressly resolved that Fourth Amendment
question, repeating its holding numerous times. See App. 2a (“we conclude that while
an in-the-presence observation may be sufficient for a warrantless misdemeanor
arrest, it is not necessary under the Fourth Amendment”); App. 10a (“hold[ing] that
the Fourth Amendment does not require a misdemeanor to occur in an officer’s
presence to conduct a warrantless arrest”); App. 12a (“We find that the Fourth
Amendment does not contain an in-the-presence requirement for all warrantless
misdemeanor arrests.”); App. 16a (“We hold that there is no in-the-presence
25
requirement for warrantless misdemeanor arrests under the Fourth Amendment.”).
And the Eleventh Circuit did not identify or rely on any alternative grounds to affirm.
3.
The Fourth Amendment question is otherwise dispositive of this case.
a.
The complainant reported seeing Petitioner coming out from behind the
gate of a neighbor’s house, looking into mailboxes, and concealing himself between
cars. There is no dispute that, had this conduct occurred in the presence of the
officers, they would have had probable cause to arrest him for loitering and prowling.
But there is no dispute that this conduct did not occur in their presence. All they saw
was a man walking down a residential street at 5:22 a.m. Yet the officers determined
that he had been loitering and prowling based on the suspicious conduct that the
complainant had observed. Indeed, that conduct formed the basis of the decision to
arrest him. See Dist. Ct. ECF No. 63 at 29–30 (testimony of arresting officer).
At no point in this litigation has anyone seriously argued that the officers had
probable cause based solely on what they saw—without considering the complainant’s
report. For example, even though the district court appeared to accept that there was
an in-the-presence requirement, the court was still forced to rely heavily on the
complainant’s report in order to find probable cause. See Dist. Ct. ECF No. 63 at 92–
94 (ruling that the officers were entitled to rely on the complainant’s report when
seeing a man matching the description). Similarly, the government’s probable-cause
argument on appeal also invariably relied on the suspicious conduct that the
complainant had observed and reported. See, e.g., U.S. C.A. Br. 1 (framing the issue
on appeal as whether the arrest of Petitioner—“who matched the description of a man
26
casing a residential neighborhood and emerging from behind a home that was not his
own . . . —was consistent with the Fourth Amendment”); id. at 12 (“walk out from
behind a house that is not their own”); id. (“behind other people’s houses”); id. at 13
(“An area resident had reported a suspicious man matching Grandia Gonzalez’s
description casing the neighborhood and walking out from behind a home”).
Accordingly, the Eleventh Circuit recognized that, if the Fourth Amendment
contained an in-the-presence requirement, there likely would have been no probable
cause to support the warrantless arrest for the misdemeanor offense of loitering and
prowling. App. 15a (“Stripped of the complainant’s observations, the officers likely
lacked probable cause to arrest Gonzalez under Florida’s prowling statute.”). That
was so, the court explained, because “all the officers saw was a man walking down a
neighborhood street in the early morning hours.” App. 14a–15a; see App. 15a (“Even
considering the officer’s conversations with Gonzalez regarding his living situation,
we are skeptical that these interactions give rise to ongoing or imminent criminal
activity,” as required to establish loitering-and-prowling offense under Florida law).
Since that conduct standing alone—without considering the complainant’s
observations—would have been insufficient, the court of appeals recognized that
“[t]his case requires us to determine whether the Fourth Amendment contains an inthe-presence requirement for a warrantless misdemeanor arrest.” App. 2a (emphasis
added). After the court held that there was no such requirement, it then proceeded to
consider the
“totality
of
the circumstances,”
focusing
on
“the
resident’s
contemporaneous complaint.” App. 15a. Only after considering all of the
27
circumstances, including the complainant’s observations, did the court conclude that
there was probable cause for the arrest. Id. In its final paragraph, the court reiterated
that its probable-cause determination depended on the lack of an in-the-presence
requirement. App. 16a (“Without such a requirement, the officers had probable cause
to arrest Gonzalez for loitering and prowling under § 856.021.”) (emphasis added).
b.
No other member of the panel joined Judge Luck’s concurrence in the
judgment, but it is unpersuasive in any event. Although the government never made
this argument, he opined that, even if there was an in-the-presence requirement, it
would not apply here because it is satisfied where the offense partially occurs in an
officer’s presence. App. 17a–18a, 21a–22a. But he failed to cite any Founding-era
authority for that proposition; instead, he cited a handful of 20th century state-court
decisions. App. 22a. Regardless, not even part of the offense conduct here occurred in
the presence of an officer. Again, all the officers saw Petitioner do was walk down the
middle of a residential street at 5:22 a.m.; that is simply not loitering and prowling.
The loitering and prowling for which Petitioner was arrested occurred before the
officers arrived—i.e., when the complainant saw him coming out from the neighbor’s
house, looking into mailboxes, and concealing himself between cars. And while the
officers later determined that Petitioner did not dispel their alarm—again, alarm
arising only from the conduct seen by the complainant—that failure merely negated
a potential affirmative defense under § 856.021(2); it did not go to one of the offense
elements under § 856.021(1). See State v. Ecker, 311 So.2d 104, 110 (Fla. 1975). Those
elements were satisfied based on conduct that did not occur in any officer’s presence.
28
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
HECTOR A. DOPICO
INTERIM FEDERAL PUBLIC DEFENDER
/s/ Andrew L. Adler
ANDREW L. ADLER
ASHLEY D. KAY
ASS’T FED. PUBLIC DEFENDERS
1 E. Broward Blvd., Ste. 1100
Ft. Lauderdale, FL 33301
(954) 356-7436
Andrew_Adler@fd.org
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.