In Gonzalez v. United States, on Monday Justice Sotomayor, joined by Justice Gorsuch, filed a statement regarding the denial of the petition for certiorari. From the introduction:
Founding-era common law gave officers no authority to make an "arrest without a warrant, for a mere misdemeanor not committed in [their] presence." Bad Elk v. United States (1900) (collecting sources). This petition asks the Court to decide whether the Fourth Amendment incorporates that "in-the-presence" limitation on warrantless misdemeanor arrests. There is reason to think it might. After all, the in-the-presence requirement existed in some form at the founding. This Court has often held, moreover, that the Fourth Amendment "'must provide at a minimum the degree of protection'" the common law afforded at the time of its adoption. Lange v. California, (2021)…
"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." Kurtz v. Moffitt (1885). Instead, as Sir Matthew Hale summarized the rule, a warrantless arrest could be made only "[i]f an affray be made in the presence of a justice of peace, or if a felon be in his presence," and was prohibited "if there be only an affray … not in view of the constable."
After the founding, American States continued to abide by the in-the-presence rule almost without exception. Indeed, during the 19th and 20th centuries, state courts repeatedly reaffirmed the rule's continued vitality in the face of attempts to expand warrantless arrest powers. Today, most States continue to "hold to the view that a warrantless misdemeanor arrest may be made only for an offense committed 'in the presence'" of the arresting officer. …
The Eleventh Circuit thought Gonzalez's arrest permissible because, in its view, the Fourth Amendment does not incorporate the in-the-presence rule in any form. There is a serious question about whether that categorical holding is consistent with this Court's precedent. To be sure, this Court left open "whether the Fourth Amendment entails an 'in the presence' requirement for purposes of misdemeanor arrests" in Atwater v. Lago Vista (2001), where that question was not presented. Since then, however, the Court has several times said that the Fourth Amendment "'must provide at a minimum the degree of protection it afforded when it was adopted.'" Precedent and historical evidence suggest, moreover, that the common law included at least some form of in-the-presence requirement for warrantless misdemeanor arrests. If that is right, it follows that the Fourth Amendment likely does as well….
Agreed. As Justice Scalia argued in numerous opinions, and as Rachel Barkow argues in this new book, many modern doctrines of police procedure, and criminal trial procedure, are inconsistent with originalism. Whether it's appropriate for non-originalist liberals like Justice Sotomayor to invoke originalism in these situations is a different question.
(Via Eugene Volokh at Volokh Conspiracy.)
Posted at 6:07 AM