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

No. 24-5577

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

______________

REPLY BRIEF FOR PETITIONER

______________

HECTOR A. DOPICO

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

December 23rd, 2024

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

REPLY BRIEF FOR PETITIONER .............................................................................. 1

I.

The decision below contravenes this Court’s precedent .................................. 2

A.

The common law sets the constitutional floor......................................... 2

B.

The common law contained an in-the-presence requirement................. 3

C.

There is no basis to discard this Court’s common-law precedent .......... 5

II. The question presented warrants review ...................................................... 10

A.

The question presented is recurring and important ............................. 10

B.

The landscape in the States bolsters the need for review .................... 11

III. This case is an ideal vehicle ........................................................................... 13

CONCLUSION............................................................................................................. 15

i

TABLE OF AUTHORITIES

Cases

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) .................................................................................. 1, 3–7, 9, 11

Byrd v. United States,

584 U.S. 395 (2018) .................................................................................................. 14

Carroll v. United States,

267 U.S. 132 (1925) ............................................................................................ 3–4, 6

Collins v. Virginia,

584 U.S. 586 (2018) .................................................................................................. 14

Cutter v. Wilkinson,

544 U.S. 709 (2005) .................................................................................................. 14

Ex Parte Rhodes,

79 So. 462 (Ala. 1918) ............................................................................................... 12

In re Kellam,

41 P. 960 (Kan. 1895) ............................................................................................... 12

John Bad Elk v. United States,

177 U.S. 529 (1900) .......................................................................................... 3–4, 12

Kurtz v. Moffitt,

115 U.S. 487 (1885) .......................................................................................... 3, 6, 12

Lange v. California,

594 U.S. 295 (2021) ................................................................................................ 2, 8

Orick v. State,

105 So. 465 (Miss. 1925) ........................................................................................... 12

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) .................................................................................................. 14

Payton v. United States,

445 U.S. 573 (1980) .................................................................................................... 3

ii

Pinkerton v. Verberg,

44 N.W. 579 (Mich. 1889) ........................................................................................... 7

State v. Schultz,

850 P.2d 818 (Kan. 1993) ......................................................................................... 12

Trupiano v. United States,

334 U.S. 699 (1948) ................................................................................................ 3, 6

United States v. Jones,

565 U.S. 400 (2012) ................................................................................................ 2–4

United States v. Watson,

423 U.S. 411 (1976) ............................................................................................ 3, 6, 9

Virginia v. Moore,

553 U.S. 164 (2008) ................................................................................................ 6–8

Wilson v. Arkansas,

514 U.S. 927 (1995) .................................................................................................... 9

Statutes

Fla. Stat. § 810.09(2)(c)................................................................................................ 15

Other Authorities

Max Farrand,

The Laws and Liberties of Massachusetts (1929) ..................................................... 7

Michael J. Gorman,

Survey: State Search and Seizure Analogs,

77 Miss. L.J. 417 (2007) ........................................................................................... 12

Eisha Jain,

Proportionality and Other Misdemeanor Myths,

98 B.U. L. Rev. 953 (2018) ....................................................................................... 10

Sandra G. Mayson & Megan T. Stevenson,

Misdemeanors by the Numbers,

61 B.C. L. Rev. 971 (2020) ........................................................................................ 10

iii

REPLY BRIEF FOR PETITIONER

The question presented is whether a warrantless arrest for a misdemeanor

violates the Fourth Amendment where it did not occur in an officer’s presence. Pet. i.

While this Court reserved that question 23 years ago in Atwater v. City of Lago

Vista, 532 U.S. 318, 340 n.11 (2001), the Court’s precedent effectively answers it.

After Atwater, the Court made clear for the first time that the Fourth Amendment

cannot be less protective than the common law was at the time of the Founding. And

this Court has numerous precedents recognizing that the common law contained an

in-the-presence requirement for misdemeanor arrests. That should resolve this case.

Nonetheless, the courts of appeals and the government are brazenly disregarding this

Court’s precedent and substituting their own policy views for those of the Framers.

This defiance of precedent and history is hardly the only reason to grant

review. Each year, tens of millions of Americans are arrested for misdemeanors,

which significantly restrict their liberty. Yet citizens and officers lack basic guidance

about the Fourth Amendment. Filling that void is a confusing legal patchwork. As

this case illustrates, the admissibility of evidence found during misdemeanor arrests

may now turn arbitrarily on whether a case is brought in state or federal court. And

state supreme courts have reached different conclusions on the question presented.

As for this case, it is undisputed that the question presented is fully preserved,

and that it was the exclusive basis of the decision below. The government’s vehicle

arguments would at best be for remand (not this Court), and they are unsupported in

any event. No better vehicle will come to the Court, and there is no reason for delay.

1

I.

The decision below contravenes this Court’s precedent.

Petitioner’s argument is based on a simple syllogism: 1) this Court has held

that the Fourth Amendment cannot be less protective than the common law was at

the Founding; and 2) this Court has recognized that the common law prohibited

warrantless misdemeanor arrests where it was not committed in an officer’s presence.

Taken together, these two lines of precedent establish that the Fourth Amendment

itself contains an in-the-presence requirement for warrantless misdemeanor arrests.

The Eleventh Circuit’s contrary decision below conflicts with this Court’s precedent.

A.

The common law sets the constitutional floor.

As petitioner emphasized, the common law at the time of the Founding sets

the constitutional floor for purposes of the Fourth Amendment. See Pet. i, 13–14, 16.

As this Court has twice explained, “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 (2021)

(quoting United States v. Jones, 565 U.S. 400, 411 (2012) (emphasis in original)).

Although the Eleventh Circuit below acknowledged this binding precedent

(Pet. App. 6a), the government refuses to do so. The government admits only that “the

common law is ‘instructive’” for determining the scope of the Fourth Amendment.

BIO 7. But while the government quotes Lange for this proposition, it conspicuously

ignores the key passage in Lange reaffirming that the Fourth Amendment cannot be

less protective than the common law was at the time of the Founding. The Court must

therefore ascertain what the common law provided on the question presented here.

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B.

The common law contained an in-the-presence requirement.

Fortunately, this Court has already done so—numerous times. As explained in

the petition, the Court has numerous precedents stretching back well over a century,

all of which consistently articulate the following common-law rule: an officer could

make a warrantless arrest for a misdemeanor only if the offense occurred in his

presence. See Pet. 10–13 (discussing Kurtz v. Moffitt, 115 U.S. 487, 498–99 (1885);

John Bad Elk v. United States, 177 U.S. 529, 534–35 (1900); Carroll v. United States,

267 U.S. 132, 156–57 (1925); Trupiano v. United States, 334 U.S. 699, 713 (1948)

(Vinson, C.J., dissenting); United States v. Watson, 423 U.S. 411, 418–19 (1976);

Payton v. United States, 445 U.S. 573, 590 n.30 (1980); Atwater, 532 U.S. at 340–41).

Unable to dispute that these many precedents do articulate this common-law

rule, the government responds that they all existed when Atwater was decided, and

Atwater reserved the Fourth Amendment question. BIO 10–11. But while this Court

often “look[ed] to the common law” by that time (BIO 11 n.2), it was not yet clear that

the common law set the constitutional floor. As petitioner emphasized, the Court did

not make that clear until Jones—a decade after Atwater. See Pet. i, 13, 16. This

chronology may explain why Atwater itself reaffirmed the common-law rule—citing

Kurtz, Bad Elk, Carroll, and Watson—but still reserved the Fourth Amendment

question. 532 U.S. at 340–41 & n.11. And because Chief Justice Rehnquist supplied

the fifth vote in Atwater but had previously joined Justice White’s dissent opposing

an in-the-presence requirement, that too may help explain why Atwater cautiously

reserved the Fourth Amendment question “not at issue” there. Id. at 341; see Pet. 16.

3

Notwithstanding Atwater’s reservation, the Court effectively did resolve that

question back in Carroll. The Court agreed with the defendants that, if the search

could be upheld only as one incident to an arrest, then it would be invalid. See Carroll,

267 U.S. at 158 (“If [the defendants’] theory were sound, their conclusion would be.”).

And that was so because the arrest was for a misdemeanor not committed in an

officer’s presence, as required by the common law. See id. at 156–57. Thus, contrary

to the government’s assertion (BIO 11–12), Carroll did pass on the validity of the

arrest there. See Pet. 15. Indeed, the Court resorted to the “automobile exception”

only because the misdemeanor arrest was unlawful. At the very least, even if Carroll

did not definitively resolve the Fourth Amendment question presented here, its

articulation of the common-law rule could not be characterized as dicta, since that

rule is what led the Court to affirm based on the automobile exception. And, again,

we now know post-Jones that the common law sets the Fourth Amendment baseline.

The common-law rule was not dicta in Bad Elk either. The government does

not dispute that the Court held that the defendant had a right to resist because the

arrest was unlawful. The government argues that the arrest was unlawful only

because there was no probable cause of any crime at all. BIO 12. But the Court

emphasized the rule 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.”

Bad Elk, 177 U.S. at 534. The Court added that there was also no statutory authority

permitting officers “to arrest an individual without a warrant, on a charge of

misdemeanor not committed in their presence,” and that “the common law” was

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“substantially enacted” in the state statute. Id. at 535 & n.†. Were the government’s

reading correct, there would have been no reason to even mention the common law or

misdemeanors at all; the Court could have simply said that there was no probable

cause for any crime and stopped there. Nor did the Court hold that legislatures could

depart from the common-law rule; it merely observed that, in addition to there being

no common-law authority for the arrest, there was no statutory authority either.

C.

There is no basis to discard this Court’s common-law precedent.

The government’s real response to this Court’s precedents on the common law

is that they should be disregarded because they: 1) are wrong; and 2) are bad policy.

1.

As for the common law, the government fails to mention that, each time

this Court articulated the common-law rule, it cited numerous historical authorities:

various treatises, English cases, and law review articles. See Pet. 18. The Court’s

articulation of the common law was by no means ill-conceived or careless. Yet the

government now boldly asks the Court to discard this mountain of well-considered

precedent. That is a tall order. At a minimum, the government should be required to

come forward with compelling historical evidence to the contrary. It has not done so.

a.

The government points to Atwater’s comment that “statements about

the common law of misdemeanor arrest simply are not uniform.” BIO 7 (quoting

Atwater, 532 U.S. at 329). But the government takes that comment out of context.

The Court was referring only to whether the common law contained a breach-of-thepeace limitation for misdemeanor arrests. The sentences immediately preceding and

following that comment in Atwater are about the type of misdemeanors subject to

5

warrantless arrest, not an in-the-presence requirement. In fact, the Court observed

that, in Carroll, it had “conspicuously omitted any reference to a breach-of-the-peace

limitation in stating the ‘usual rule’ at common law,” but that same statement did

reference an in-the-presence requirement. Atwater, 532 U.S. at 329 (cleaned up).

b.

The government does not actually dispute that, as a general matter, the

common law did have an in-the-presence requirement for misdemeanor arrests. The

most the government can do is purport to identify two limited “exceptions” to that

rule. BIO 7–8.1 But, unlike Atwater, they do not render the common law inconclusive.

i.

Although inapplicable to the facts of this case, the government relies on

a reference to “incontinency” crimes from the second volume of Hale’s treatise. BIO 7.

But the government ignores the broader context. As petitioner explained below, the

first and second volume of Hale’s treatise are replete with statements recognizing an

in-the-presence-requirement for misdemeanor arrests. See Pet. C.A. Reply Br. 7–10.

Perhaps that is why this Court has repeatedly cited Hale to support its view of the

common-law rule. See 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 government fails to

explain why the Court should (or even could) reconsider the same historical source

that it has repeatedly read to support an in-the-presence requirement. See Pet. 17–

18. Indeed, in the context of misdemeanor arrests, the Court has previously declined

to reconsider historical sources that it has already considered. See Virginia v. Moore,

1

The government separately refers to “nightwalker” statutes (BIO 14), but it does not

argue that they authorized arrest for conduct occurring outside the officer’s presence.

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553 U.S. 164, 168 n.2 (2008) (“Particularly since Atwater considered the materials on

which Justice Ginsburg relies, we see no reason to revisit the case’s conclusion.”).

In any event, the lone reference in the Hale treatise on which the government

relies is, at worst, a dubious outlier. It does not cite any supporting authority or

examples. And the government does not cite any other source recognizing an

exception for sexual crimes. Meanwhile, other authorities squarely reject such an

exception. See, e.g., Pinkerton v. Verberg, 44 N.W. 579, 585–86 (Mich. 1889) (holding,

in the context of prostitution, that “[a]n arrest for misdemeanor, without a warrant,

by one who does not see the offense committed, is illegal”; stating that “at the common

law no such right existed”; and adding that “there is no distinction, in this respect,

between one kind of misdemeanor and another”) (citing sources, including Hale).

ii.

The government relies on a colonial Massachusetts law that made an

exception for swearing, vagrancy, Sabbath breaking, etc... BIO 8. But the government

omits that this law is from 1646—the era of the Puritans, not the Framers.2 It

predates ratification of the Fourth Amendment by 145 years. And the Court has

explained that only “statutes enacted in the years immediately before or after the

Amendment was adopted shed light on what citizens at the time of the Amendment’s

enacted saw as reasonable.” Moore, 553 U.S. at 169 n.3. Even for those statutes, there

was still “no historical indication that those who ratified the Fourth Amendment

understood it as a redundant guarantee of whatever limits on search and seizures

2

Notably, 1646 is the same year that the Massachusetts Bay Colony made it a capital

crime for children to disobey their parents—innocuously dubbed The Stubborn

Children Law. See M. Farrand, The Laws and Liberties of Massachusetts 6 (1929).

7

legislatures might have enacted.” Id. at 168. Rather, the Fourth Amendment was

“little more than the affirmance of a great constitutional doctrine of the common law,

which [Joseph] Story defined in opposition to statutes.” Id. at 169 (quotation omitted).

2.

Unable to overcome this Court’s many precedents and the overwhelming

historical record, the government relies primarily on its policy views about what it is

“reasonable” today. See BIO 8–10. The Court should not entertain this argument at

all, for the Court’s “regular rule [is] that history—not court-created standards of

reasonableness—dictates the outcome whenever it provides an answer.” Lange, 594

U.S. at 316 (Thomas, J., concurring in part and concurring in the judgment).

In any event, the government’s main policy argument is also foreclosed by

precedent. It argues that petitioner’s rule is unsatisfactory “given how much less clear

and salient the felony/misdemeanor distinction has become since the Founding Era.”

BIO 9. “Today,” the government continues, “that distinction is often technical” and

“obscure.” Id. In Lange, however, this Court recently rejected these arguments, which

were forcefully made in the Chief Justice’s separate opinion. He emphasized that the

felony/misdemeanor distinction was “famously difficult to apply” and “esoteric,” and

that the Court had “not crafted constitutional rules based on the distinction between

modern day misdemeanors and felonies.” Lange, 594 U.S. at 331–33 (Roberts, C.J.,

concurring in the judgment). Nonetheless, the Court did just that, relying on both its

precedent and the common law to draw a constitutional distinction between fleeing

felons and misdemeanants for warrantless home entries. The Court should follow the

same course here because its precedent and the common law are again dispositive.

8

The government’s policy arguments are even weaker in this context because

the government acknowledges that “many state and federal laws incorporate a

presence requirement for warrantless misdemeanor arrests.” BIO 9. In fact, the vast

majority of state laws have such a requirement, as this Court previously recognized

in Watson and Atwater. See Pet. 21–22. While the government identifies a minority

of state-law arrest provisions that do not (BIO 10 n.1), the key fact is that numerous

state misdemeanor arrests have long been subject to an in-the-presence requirement.

And yet the government fails to identify any practical difficulties in administration.3

The government nonetheless speculates that petitioner’s rule would “unduly

hinder law enforcement,” and that it would prevent States from adjusting any in-thepresence requirement through legislation. BIO 10. But this pure policy argument

overlooks an obvious legislative solution to any problems that may arise: States can

reclassify misdemeanors as felonies. If a State deems an offense serious enough to

dispense with a presence requirement—i.e., serious enough for officers to rely only on

third-party accounts—then the State could enact legislation reclassifying that offense

as a felony. Faithfully adhering to the common law and the Court’s precedent would

thus not tie the hands of States. In fact, it might even spur overdue legislative reform.

3

Moreover, the predominance of an in-the-presence requirement further reinforces

petitioner’s view of the common law; the States simply carried it forward. See Pet. 21.

The government responds that such state laws would have been unnecessary had the

Fourth Amendment contained such a presence requirement. BIO 13. But this Court

has never employed such reasoning. To the contrary, where the “States had enacted

statutes specifically embracing the common-law view,” the Court has used that as

evidence that the Fourth Amendment itself incorporated the common law. Wilson v.

Arkansas, 514 U.S. 927, 933 (1995); cf. Atwater, 532 U.S. at 338–39 (converse).

9

II.

The question presented warrants review.

A.

The question presented is recurring and important.

1.

The most comprehensive national study of misdemeanors reported over

13 million cases filed per year—with over 40 cases filed per 1,000 people. Sandra G.

Mayson & Megan T. Stevenson, Misdemeanors by the Numbers, 61 B.C. L. Rev. 971,

979 (2020). And that is just the number of cases filed, not the number of arrests made.

“Racial disparities, meanwhile, were pervasive,” affecting people of color and

the poor. Id. Moreover, even the most “[m]inor misdemeanors can trigger massive

collateral consequences, often without adequate notice or meaningful process.” Eisha

Jain, Proportionality and Other Misdemeanor Myths, 98 B.U. L. Rev. 953, 954 (2018).

That includes “hefty civil penalties,” “license suspension, pension loss, loss of public

housing, and deportation.” Id. at 958. And while misdemeanors are often “punished

with little to no prison time,” [j]ail time . . . is another story; many misdemeanants

are jailed or face the threat of jail time while their cases are pending.” Id. at 956–57.

In short, misdemeanor arrests happen every day, they are marked by racial

and economic disparity, and they have a significant effect on liberty. The government

accordingly does not dispute that the question here is both recurring and important.

2.

There are more undisputed factors supporting review. The government

does not dispute that this Court has granted review in several Fourth Amendment

arrest cases without noting a conflict. See Pet. 20. The government does not dispute

that this Court’s cases have led to confusion on the question here, since they hold that

compliance with an in-the-presence requirement satisfies the Fourth Amendment—

10

without clarifying whether non-compliance with that requirement would violate the

Fourth Amendment. See Pet. 20–21. And the government does not dispute that

respected lower-court jurists like Judge Sutton have encouraged the Court to resolve

the question here. See Pet. 21. After all, and as the government emphasizes, the Court

left this question open 23 years ago in Atwater. Given that misdemeanor arrests are

a routine and daily occurrence, the time for resolving the question is long overdue.

3.

The government argues only that review is not warranted because, on

its count, at least eight circuits uniformly reject petitioner’s position. BIO 12–13 &

n.3. But that landscape supports the need for review here. It reflects that the vast

majority of federal courts are defying this Court’s precedent and disregarding the

common law. Even if this Court ultimately agreed with their conclusion, it should not

remain idle in the face of such intransigence by the lower courts. As explained, this

Court—and only this Court—may modify its supreme precedent. See Pet. 10, 19–20.

B.

The landscape in the States bolsters the need for review.

1.

While there is no conflict among the circuits, that does not mean there

is no disparity on the ground. There is. Because many States have an in-the-presence

requirement, and federal law (erroneously) does not, the admissibility of evidence in

much of the country now turns on whether a case is charged in state or federal court.

Indeed, the evidence in this case would have been suppressed had it been brought in

state court. See Pet. 22–23. Revealingly, the government ignores these intra-state

(and intra-city) disparities. But under the current landscape, the admissibility of

evidence can now turn on this wholly arbitrary criterion left to the sole discretion of

11

prosecutors. Worse still, the status quo perversely incentivizes prosecutors to charge

local garden-variety state crimes in federal court just to avoid suppression. Only this

Court can decide whether this undesirable legal regime should continue to govern.

2.

The government also does not dispute that state courts of last resort

have split on whether an in-the-presence requirement may be eliminated by statute.

Three state supreme courts have held that it may not be. See Pet. 24 (citing 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)). The government does not dispute

that these cases remain good law. Instead, it responds that they were based on the

state (not federal) Constitution. BIO 13. But it omits that they relied not on state-law

considerations but on the common law. Indeed, the Mississippi Supreme Court relied

on this Court’s precedents in Kurtz and Bad Elk. Orick, 105 So. at 470. And, critically,

it added that the search-and-seizure provision in its Constitution is “governed by the

same rules and principles” as the federal Constitution. Id. at 471. Nor is there any

daylight with the Fourth Amendment in Alabama or Kansas, as they have “never

extended state constitutional protections beyond [the] federal guarantees.” State v.

Schultz, 850 P.2d 818, 824 (Kan. 1993); see Michael J. Gorman, Survey: State Search

and Seizure Analogs, 77 Miss. L.J. 417, 418 (2007) (“Although the Supreme Court of

Alabama recognizes its authority to interpret its state analog differently, it has not

diverged from federal interpretations of the Fourth Amendment”); id. at 431 (same

for Kansas). Meanwhile, the government does not dispute that, on the other side of

the split, the Utah and Washington Supreme Courts have relied on the more recent

12

precedents of this Court and the federal circuits to hold that the Fourth Amendment

does not contain an in-the-presence requirement. See Pet. 24. As a practical matter,

then, the lower courts are divided on the federal Fourth Amendment question here.

III.

This case is an ideal vehicle.

The government’s vehicle objections are makeweight; they are easily overcome.

1.

To begin, the government does not dispute that petitioner properly

preserved his argument below. See Pet. 25. Nor does the government dispute that the

Eleventh Circuit resolved the question presented in a published opinion, expressly

and repeatedly holding that the Fourth Amendment lacks an in-the-presence

requirement. Key here, that was the sole basis for the decision below. See Pet. 25–26.

2.

The government nonetheless argues that the legality of petitioner’s

arrest does not depend on whether there is an in-the-presence requirement. BIO 13.

This argument fails for a simple reason: it finds no support in the decision below. Not

only did the Eleventh Circuit uphold the arrest on the exclusive ground that the

Fourth Amendment lacks an in-the-presence requirement; the court went out of its

way to explain that there likely would not have been probable cause if there was such

a requirement. The petition documented these many key passages in the decision

below. See Pet. 7, 27–28. Inexplicably, the government acts like they do not exist. But

they make this case a pristine vehicle: the presence requirement was case dispositive.

At the very least, because the question presented here formed the sole basis of

the decision below, any arguments for why there would still be probable cause even

with an in-the-presence requirement would be addressed in the first instance on

13

remand were petitioner to prevail here. After all, this Court is a “court of review, not

of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). So those arguments

are not properly before this Court now. And the Court routinely grants review on

threshold legal issues notwithstanding unresolved arguments that could defeat relief

on remand—including in Fourth Amendment cases like this one. See, e.g., Collins v.

Virginia, 584 U.S. 586, 601 (2018); Byrd v. United States, 584 U.S. 395, 411 (2018).

3.

In any event, the government’s arguments are entirely unsupported.

a.

Relying on Judge Luck’s solo concurrence, the government argues that

petitioner did commit a misdemeanor in the officer’s presence. BIO 14. But, again,

the other panel members did not agree, opining that there likely would not have been

probable cause if there was an in-the-presence requirement. Judge Luck’s opinion

was also premised on the theory that only part of the offense had to be committed in

an officer’s presence, but neither he nor the government have supported that theory

with any framing-era authority. See Pet. 28. Regardless, all the officer saw here was

petitioner walking down the street at 5:20 a.m. He cited dozens of Florida cases below

establishing that this conduct does not even come close to the misdemeanor offense

of loitering and prowling. See Pet. C.A. Initial Br. 24–40; Pet. C.A. Reply Br. 19–20

& n.1. Tellingly, the government does not cite a single Florida case to the contrary.4

4

The only authority that the government cites here are the “nightwalker” statutes.

BIO 14. Ironically, they were the progenitor of the vagrancy ordinance that this Court

struck down in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). In response

to that decision, the Florida Legislature enacted the loitering-and-prowling statute

at issue here. And Florida courts have since strictly construed that criminal statute

to capture only incipient criminal conduct and to exclude vagrant conduct like merely

walking down the street. See Pet. C.A. Initial Br. 18–29 (discussing Florida law).

14

b.

In a last-ditch effort, the government asserts that there was probable

cause of a different crime: felony trespass. BIO 15. But the government acknowledges

that the Eleventh Circuit expressly “declin[ed] to reach that issue.” BIO 15 (citing

Pet. App. 16a n.7). So that issue not before this Court. Regardless, the government

forfeited it by failing to raise it in the district court. See Pet. C.A. Reply Br. 27. And

the government also omits that, to be a felony, the person must be armed during the

trespass with a firearm or a “dangerous weapon.” Fla. Stat. § 810.09(2)(c). The latter

is limited to objects used or intended to be used to cause great bodily harm/death.

Here, the complainant did not observe petitioner trespassing with any object at all,

let alone a “dangerous weapon.” See Pet. C.A. Reply Br. 27–29 (applying Florida law).

*

*

*

In sum, this case is the perfect vehicle. Petitioner’s argument is fully preserved.

The decision below squarely resolved the question presented. And that decision went

out of its way to indicate that the misdemeanor arrest could not otherwise be upheld.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

HECTOR A. DOPICO

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

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