Opposition Brief — Victor Javier Grandia Gonzalez, Petitioner v. United States

No. 24-5577

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

VICTOR JAVIER GRANDIA GONZALEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

NATASHA K. HARNWELL-DAVIS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the arrest of petitioner -- whom police encountered

in the predawn darkness dressed in black and carrying a backpack;

who

matched

the

description

of

a

man

casing

a

residential

neighborhood and emerging from a property that was not his own;

and who had scissors in his waistband -- was permissible under the

Fourth Amendment by probable cause of a state-law misdemeanor.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 24-5577

VICTOR JAVIER GRANDIA GONZALEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-23a) is

reported at 107 F.4th 1304.

JURISDICTION

The judgment of the court of appeals was entered on July 19,

2024.

The petition for a writ of certiorari was filed on September

16, 2024.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District Court

for the Southern District of Florida, petitioner was convicted on

2

one count of possessing stolen mail, in violation of 18 U.S.C.

1708.

Judgment 1.

He was sentenced to time served of one day, to

be followed by two years of supervised release.

Judgment 2-3; see

C.A. App. 187.

Pet. App. 1a-23a.

1.

The court of appeals affirmed.

Around 5 a.m. one morning in Florida, police dispatch

directed two officers to a residential neighborhood after a 911

caller reported having seen a man “casing the area.”

2a; see Pet. 3.

Pet. App.

One of the officers met with the caller, who

reported that his wife had seen a man in black clothing with a

backpack looking into mailboxes, hiding between cars, and coming

out of the neighbors’ gate.

Pet. App. 3a.

away”

their

at

the

burglarized.”

time,

and

home

The neighbors “were

“had

previously

been

Ibid.

The second officer went to canvass the neighborhood and,

“[a]bout

a

half

block

away

from

the

[caller’s]

petitioner walking in the middle of the street.

home,”

saw

Pet. App. 2a.

The officer approached and observed that petitioner “wore dark

clothing, carried a plastic bottle and a backpack, and had a shiny

metal object in his pocket.”

Id. at 3a.

Petitioner told the

officer that he lived out of his car eight to ten blocks away.

Ibid. “When asked why he was walking down the street, [petitioner]

responded that he thought he was allowed to do so.”

Ibid.

officer thought petitioner “looked sweaty and nervous.”

The

first

officer

then

rejoined

the

second

The

Ibid.

and

patted

petitioner down, finding the metal object in his pocket to be

3

scissors.

Pet. App. 3a.

Petitioner “told the officers he was

walking because he couldn’t sleep” and showed them identification

listing his address as a location 30 minutes away.

Id. at 4a.

Based on their observations and the 911 caller’s report, the

officers

arrested

petitioner

misdemeanor under state law.

for

“loitering

and

prowling,”

a

Ibid.; see Fla. Stat. § 856.021(1)

(“It is unlawful for any person to loiter or prowl in a place, at

a time or in a manner not usual for law-abiding individuals, under

circumstances that warrant a justifiable and reasonable alarm or

immediate concern for the safety of persons or property in the

vicinity.”).

A search of petitioner’s backpack incident to his

arrest found “37 pieces of sealed mail belonging to neighborhood

residents,” which petitioner admitted to stealing.

2.

Pet. App. 4a.

A grand jury in the Southern District of Florida returned

an indictment charging petitioner with four counts of possessing

stolen mail, in violation of 18 U.S.C. 1708.

Pet. App. 4a.

Petitioner moved to suppress the stolen mail and his admission,

arguing that “the Fourth Amendment prohibits a warrantless arrest

for a misdemeanor unless committed in an officer’s presence.”

Ibid.

The district court denied the motion.

Ibid.

Petitioner

pleaded guilty to one count of possessing stolen mail, in violation

of 18 U.S.C. 1708, and reserved his right to appeal the denial of

his

suppression

motion.

Id.

at

4a-5a.

The

district

court

sentenced him to time served -- one day of imprisonment -- to be

4

followed by two years of supervised release.

Judgment 2-3; see

C.A. App. 187.

3.

The court of appeals affirmed.

Pet. App. 1a-23a.

The

court rejected petitioner’s claim that the arrest violated the

Fourth Amendment, explaining that a warrantless arrest supported

by probable cause complies with the Fourth Amendment even if the

arrest is for a misdemeanor committed outside the presence of the

police.

Id. at 10a.

After noting that this Court has not

“explicitly decide[d] whether the Fourth Amendment demands an inthe-presence requirement for warrantless misdemeanor arrests,” id.

at 9a (citing Atwater v. City of Lago Vista, 532 U.S. 318, 340

n.11 (2001)), the court of appeals joined “every circuit to face

this

issue”

and

declined

to

impose

such

a

constitutional

requirement, ibid.

The court of appeals identified “three grounds” for doing so.

Pet. App. 10a. First, while accepting that the Founding-era common

law sheds light on the meaning of the Fourth Amendment, the court

found

that

there

was

no

uniform

presence

warrantless misdemeanor arrests at common law.

11a.

requirement

for

See id. at 6a-7a,

Second, the court observed that such a requirement would not

“accord[] with traditional standards of reasonableness” because a

rule turning on the technical distinctions between felonies and

misdemeanors would be “impracticable.”

Id. at 11a; see ibid.

(noting that “[m]any misdemeanors involve conduct as violent and

dangerous as felonies, or classifications turn on post-arrest

5

determinations such as weight of seized contraband”).

Third, the

court

cause

reasoned

that

the

requirement

of

probable

for

warrantless arrests is sufficient protection for individuals, and

observed

that

“[c]ategorical

exceptions

based

upon

a

crime’s

classification” would be inconsistent with the traditional Fourth

Amendment reasonableness inquiry.

Id. at 12a.

The court of appeals then found that the officers had probable

cause to arrest petitioner for loitering and prowling based on

their observations and interactions with him, the 911 caller’s

“contemporaneous complaint,” and petitioner’s “proximity to the

[caller’s] home.”

Pet. App. 15a; see id. at 15a-16a.

The court

accordingly affirmed the denial of the suppression motion.

Id. at

16a.

Judge Luck concurred in the judgment.

Pet. App. 17a-23a.

He

agreed with the panel majority that “the rule was not clear” at

common law “that an officer could not arrest a person who commits

a misdemeanor if the crime was committed outside the officer’s

presence.”

Id. at 17a; see id. at 18a-20a.

And he emphasized

that even if there were such a rule, it “would not apply to this

case,” because petitioner’s offense was committed in the presence

of the officers, who encountered petitioner while he was still

engaged in loitering and prowling.

22a.

Id. at 21a; see id. at 21a-

6

ARGUMENT

Petitioner contends (Pet. 10-20) that the Fourth Amendment

permits a warrantless arrest for a misdemeanor only if the offense

occurs in the presence of the arresting officer.

The court of

appeals correctly rejected that contention, and its decision does

not conflict with any decision of this Court or another court of

appeals.

And even if the question presented merited this Court’s

review, this case would be a poor vehicle for considering it.

Further review is unwarranted.

1.

The

court

of

appeals

correctly

recognized

that

the

Fourth Amendment does not impose a rule under which probable cause

of a misdemeanor offense can support a warrantless arrest only if

it is committed in the presence of the arresting officer.

Pet.

App. 10a.

a.

The Fourth Amendment provides, in pertinent part, that

“[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated.”

U.S. Const. Amend. IV.

“In conformity

with the rule at common law, a warrantless arrest by a law officer

is reasonable under the Fourth Amendment where there is probable

cause to believe that a criminal offense has been or is being

committed.”

Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

Here,

petitioner does not dispute that the officers had probable cause

to arrest him for loitering and prowling.

claims

his

arrest

was

inconsistent

with

See Pet. 26.

a

Yet he

common-law

rule

7

prohibiting warrantless arrests for misdemeanors committed outside

the arresting officers’ presence, which he views as dispositive of

the Fourth Amendment inquiry.

Petitioner’s

theory

See Pet. 10.

lacks

merit.

While

the

Court

has

described the common law as “instructive,” Lange v. California,

594 U.S. 295, 309 (2021) (citation omitted), here “[t]he historical

record does not reveal a limpid legal rule” governing warrantless

misdemeanor arrests, ibid.

As the court of appeals explained,

notwithstanding common-law commentators’ “tend[ency] to suggest

that an officer may conduct warrantless arrests for felonies,” but

not misdemeanors, “committed outside of their presence,” Pet. App.

7a, that was not a uniform rule.

Instead, “exceptions to any

generalized presence requirement existed at common law.”

11a.

And

the

existence

and

variety

of

practices

Id. at

undermines

petitioner’s efforts to impose a categorical Fourth Amendment

rule.

As this Court has itself observed, “statements about the

common

law

uniform.”

In

of

warrantless

misdemeanor

arrest

simply

are

not

Atwater v. City of Lago Vista, 532 U.S. 318, 329 (2001).

discussing

arrests

“for

breach

of

the

peace

and

some

misdemeanors, less than felony,” for example, Sir Matthew Hale

noted that a constable could make arrests for certain sexual

(“incontinency”) crimes based on information provided to him by

others.

2 The History of the Pleas of the Crown 88-89 (1736); see

Pet. App. 11a.

Judge Luck, in his opinion below, likewise cited

8

(among other examples) a Massachusetts colonial law authorizing

warrantless arrests of individuals who “are overtaken with drink,

swearing, Sabbath breaking, [l]ying vagrant persons, and nightwalkers, provided they be taken in the manner either by the sight

of the constable, or by present information from others.”

Pet.

App. 20a (brackets and citation omitted); see Graves v. Mahoning

County,

821

F.3d

772,

778-779

(6th

Cir.

2016)

(collecting

additional examples).

That lack of clarity in the historical record is fatal to

petitioner’s claim.

As petitioner himself acknowledges, common-

law protections must be “‘clear’” to be deemed “incorporated into

the Fourth Amendment itself.”

Pet. 14 (quoting Lange, 594 U.S. at

309); see Virginia v. Moore, 553 U.S. 164, 171 (2008) (explaining

that

“traditional

standards

of

reasonableness”

history has not provided a conclusive answer”).

apply

“[w]hen

In Atwater, for

instance, this Court emphasized a similar absence of historical

clarity in rejecting the claim that the Fourth Amendment prohibits

warrantless arrests for “minor criminal offenses” like seatbelt

violations.

532 U.S. at 326; see id. at 329.

And here, the ad

hoc exceptions adopted by States at least show that a presence

requirement

for

warrantless

misdemeanor

arrests

was

not

well

established.

b.

otherwise

Petitioner makes no effort to show that such a rule would

be

justified.

This

Court

generally

assesses

the

reasonableness of arrests and other seizures by conducting a

9

flexible “totality-of-the-circumstances inquiry” rather than by

applying categorical rules.

Pet. App. 12a; see, e.g., Plumhoff v.

Rickard, 572 U.S. 765, 774 (2014). But petitioner’s approach would

make

the

scope

constitutional

of

the

matter,

police’s

on

arrest

whether

the

authority

turn,

as

relevant

offense

a

is

classified as a felony or a misdemeanor -- “a very unsatisfactory

line of difference,” given how much less clear and salient the

felony/misdemeanor distinction has become since the Founding Era.

Carroll v. United States, 267 U.S. 132, 157-158 (1925).

Today, that distinction is often technical, obscure, and

“difficult (if not impossible)” for the “officer on the street” to

resolve.

Atwater,

532

U.S.

at

348;

see

ibid.

(noting

that

“penalties for ostensibly identical conduct can vary” based on

facts unknown at the time of arrest); Berkemer v. McCarty, 468

U.S. 420, 430 (1984) (“The police often are unaware when they

arrest a person whether he may have committed a misdemeanor or a

felony.”).

Under petitioner’s rule, a warrantless arrest for a

misdemeanor committed outside the officer’s presence would be

invalid even if the officer had exceptionally strong evidence of

the arrestee’s guilt, whereas an arrest for a similar felony would

be valid even if based on a much weaker showing of probable cause.

While many state and federal laws incorporate a presence

requirement for warrantless misdemeanor arrests, see Pet. 21-22,

10

many others do not.1

“Many states,” for example, “in an effort to

encourage arrests in domestic abuse cases, now allow officers to

arrest without a warrant if they have probable cause to believe

that the person to be arrested has committed a misdemeanor that is

an act of domestic violence.”

William A. Schroeder, Warrantless

Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771,

785-786 (1993).

The

States

that

do

have

a

statutory

in-the-presence

requirement can address any practical problems that arise through

legislation.

presence

But

imposing

requirement

as

a

a

one-size-fits-all,

federal

constitutional

unadjustable

rule

would

conflict with this Court’s prevailing approach to the Fourth

Amendment and unduly hinder law enforcement.

c.

Petitioner errs in suggesting (Pet. 10-20) that this

Court has already decided the question presented in his favor.

To

the contrary, the Court specifically reserved that question in

Atwater, declining to “speculate whether the Fourth Amendment

entails

an

‘in

the

misdemeanor arrests.”

presence’

requirement

532 U.S. at 340 n.11.

for

purposes

of

The Court even

“seem[ed] to go out of its way not” to suggest that such a

requirement exists, 3 Wayne R. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment § 5.1(b) (6th ed. Nov. 2024

1

E.g., 18 U.S.C. 3050; Colo. Rev. Stat. § 16-3-102(1)(c);

725 Ill. Comp. Stat. 5/107-2(1)(c); La. Code Crim. Proc. Ann. art.

213(A)(3); Mo. Rev. Stat. § 43.195; N.Y. Crim. Proc. Law

§ 140.10(1)(b); N.C. Gen. Stat. § 15A-401(b)(2); Or. Rev. Stat.

§ 133.310(1)(b); R.I. Gen. Laws § 12-7-3; Wis. Stat. § 968.07(1)(d).

11

update), by citing Justice White’s prior statement that a presence

requirement for warrantless misdemeanor arrests “is not grounded

in the Fourth Amendment,” Welsh v. Wisconsin, 466 U.S. 740, 756

(1984) (White, J., dissenting); see Atwater, 532 U.S. at 340 n.11.

Petitioner nonetheless relies on decisions predating Atwater

to insist that the Court has actually embraced his rule.

See Pet.

10-13 (citing, e.g., Kurtz v. Moffitt, 115 U.S. 487 (1885); Bad

Elk v. United States, 177 U.S. 529 (1900); Carroll, supra; and

United States v. Watson, 423 U.S. 411 (1976)). But those decisions

were already part of the backdrop when the Court declined to

endorse an in-the-presence requirement in Atwater.2

And even on

petitioner’s own accounting, mention of the issue was dictum in

all but two cases -- Bad Elk v. United States and Carroll v. United

States.

See Pet. 15-16.

Atwater addressed Carroll at length,

see 532 U.S. at 328-329, 340-341, and cited Bad Elk, see id. at

341, and neither case adopts the rule that petitioner proposes.

Carroll described a presence requirement as the “usual rule”

at common law, and the Court did not settle whether the Fourth

Amendment incorporated it because the search at issue was lawful

under the automobile exception to the warrant requirement; there

2

Petitioner errs in downplaying Atwater by suggesting (Pet.

2, 13, 16) that it predates cases looking to the common law in

applying the Fourth Amendment, such as United States v. Jones, 565

U.S. 400 (2012). For decades before Atwater, this Court had “often

looked to the common law in evaluating the reasonableness, for

Fourth Amendment purposes, of police activity.”

Tennessee v.

Garner, 471 U.S. 1, 13 (1985) (citing, e.g., Watson and Carroll,

supra).

12

was thus no need to resolve “the validity of the arrest” for

purposes of the search-incident-to-arrest doctrine.

156, 158; see id. at 156-159.

267 U.S. at

Nor was there any need to apply a

presence requirement in Bad Elk, which held invalid an attempted

arrest that was entirely unsupported by probable cause.

177 U.S.

at 531 (“No reason for making the arrest was given.”); see id. at

531-532, 537.

If anything, that case undercuts petitioner’s

position by implying that any presence requirement “could be

relaxed by statute.”

Street v. Surdyka, 492 F.2d 368, 371 (4th

Cir. 1974); see Bad Elk, 177 U.S. at 535.

2.

The question presented does not warrant this Court’s

review for other reasons as well. As petitioner acknowledges (Pet.

24), his claim implicates no disagreement among the courts of

appeals.

Instead, “every circuit to face this issue has ‘held

that the Fourth Amendment does not include an in-the-presence

requirement for warrantless misdemeanor arrests.’”

Pet. App. 9a

(citation

County

omitted);

see

Budnick

v.

Barnstable

Bar

Advocates, Inc., 989 F.2d 484, 1993 WL 93133, at *3 n.7 (1st Cir.

Mar. 30, 1993) (Tbl.) (per curiam); Street, 492 F.2d at 371-373

(4th Cir.); Fields v. City of S. Houston, 922 F.2d 1183, 1189 (5th

Cir. 1991); Graves, 821 F.3d at 778-779 (6th Cir.); Woods v. City

of Chicago, 234 F.3d 979, 992-995 (7th Cir. 2000), cert. denied,

534 U.S. 955 (2001); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir.

13

1990); Bickford v. Hensley, 832 Fed. Appx. 549, 554 n.4 (10th Cir.

2020); Pet. App. 10a.3

Petitioner cites (Pet. 24) a few aged state-court decisions

as applying a common-law presence requirement, but those cases do

not ground any such requirement in the Fourth Amendment. See Orick

v. State, 105 So. 465, 469-471 (Miss. 1925); Ex parte Rhodes, 79

So. 462, 462-463 (Ala. 1918); In re Kellam, 41 P. 960, 961 (Kan.

1895).

And the fact that many States have imposed a presence

requirement as a matter of state law, see Pet. 21-22, simply

reflects

the

States’

prerogative

to

“impos[e]

more

stringent

constraints on police conduct than does the Federal Constitution,”

California v. Greenwood, 486 U.S. 35, 43 (1988); see Moore, 553

U.S. at 171-172.

Indeed, such statutory provisions would have

been largely unnecessary if States understood the Fourth Amendment

to already impose a blanket rule.

They do not raise a concern

requiring this Court’s intervention.

3.

At all events, this case would be an unsuitable vehicle

for considering the question presented because the lawfulness of

petitioner’s arrest does not depend on the answer to that question.

3

Cf. Vargas-Badillo v. Diaz-Torres, 114 F.3d 3, 6 (1st Cir.

1997) (finding no “clearly established” presence requirement for

qualified-immunity purposes); Noviho v. Lancaster County, 683 Fed.

Appx. 160, 165 n.25 (3d Cir. 2017) (approvingly citing Woods);

Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1258 (8th Cir.

2010) (noting that “the weight of authority holds that the Fourth

Amendment does not impose an ‘in the presence’ requirement of this

type” and reserving the issue).

14

First, even assuming the Fourth Amendment imposed a presence

requirement

for

warrantless

misdemeanor

arrests,

Judge

Luck

correctly recognized that petitioner did commit his loitering and

prowling offense in the presence of the police.

Pet. App. 21a-

22a (Luck, J., concurring in the judgment). An officer encountered

petitioner “walking in the middle of the street in a residential

neighborhood” that he did not live in “at 5:20 in the morning,”

and he was “wearing dark clothes,” acting nervously, and carrying

scissors.

Id. at 21a.

Petitioner has not shown that any common-

law rule barred a warrantless arrest for a misdemeanor that was

ongoing when the police arrived.

See ibid.

Nor does petitioner substantiate his conclusory assertion

(Pet. 28) that the conduct that the officers saw was separate from

the conduct constituting the offense.

Cf. Fla. Stat. § 856.021(1)

(prohibiting “loiter[ing] or prowl[ing] in a place, at a time or

in

a

manner

not

usual

for

law-abiding

individuals,

under

circumstances that warrant a justifiable and reasonable alarm or

immediate concern for the safety of persons or property in the

vicinity”).

In that respect, petitioner’s arrest was particularly

consonant with historical tradition.

At the time of the Founding

and for centuries before, “nightwalker” statutes authorized the

warrantless arrest of suspicious people found in public at night.

See Atwater, 532 U.S. at 333-334 (nightwalker laws were made “in

affirmance of the common law”) (citation omitted); Minnesota v.

Dickerson, 508 U.S. 366, 380-381 (1993) (Scalia, J., concurring).

15

Second, as the government explained in the court of appeals,

the officers also had probable cause -- based on their observations

and the 911 caller’s report, which petitioner “d[id] not dispute”

below, Pet. App. 3a n.1 -- to believe petitioner had committed

felony trespass in addition to the misdemeanor loitering-andprowling offense.

See Gov’t C.A. Br. 23-26; Fla. Stat. § 810.09;

cf. Pet. App. 16a n.7 (declining to reach that issue).

Petitioner

accepts (Pet. 20) that there is no in-the-presence requirement for

warrantless felony arrests, and it is immaterial that the police

did not identify the felony offense as the basis for petitioner’s

arrest, see Devenpeck, 543 U.S. at 153.

This Court does not grant a writ of certiorari to “decide

abstract questions of law

* * *

affect no right” of the parties.

305, 311 (1882).

which, if decided either way,

Supervisors v. Stanley, 105 U.S.

It should not do so here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

NATASHA K. HARNWELL-DAVIS

Attorney

DECEMBER 2024