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| Nicolas Bourtin |
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| Sam Bonafede |
The case arose from a July 2022 incident in which Miami-Dade officers, responding to a 911 call about a "white male casing the area," observed Victor Gonzalez walking in the street in a residential neighborhood and arrested him for loitering and prowling — a misdemeanor offense under Florida Statute Section 856.021.[1]
A search incident to the misdemeanor arrest revealed stolen mail "addressed to neighborhood residents," leading to Gonzalez's federal felony indictment under Title 18 of the U.S. Code, Section 1708.[2]
Gonzalez moved to suppress the evidence, arguing that the Fourth Amendment prohibits warrantless misdemeanor arrests unless the offense occurs in the officer's presence.[3] Because the officers did not personally witness Gonzalez commit a misdemeanor, he contended "they lacked probable cause to arrest him" or to conduct the subsequent search.[4] The U.S. District Court for the Southern District of Florida denied the motion, concluding that "the officers had probable cause to believe Gonzalez" violated the loitering and prowling statute.[5] Gonzalez entered a conditional guilty plea to preserve his right to appeal.[6]
On appeal, the parties debated the scope of the Fourth Amendment's probable cause standard as applied to warrantless misdemeanor arrests.[7] Gonzalez asserted that "the common law contains an 'in-the-presence requirement,' and the Fourth Amendment cannot be less protective than the common law."[8]
The government countered that the Fourth Amendment inquiry focuses on the overall "reasonableness of the arrest," regardless of whether the officer personally observed the misdemeanor conduct.[9]
The Eleventh Circuit affirmed the denial of suppression, holding that "the Fourth Amendment does not require a misdemeanor to occur in an officer's presence to conduct a warrantless arrest."[10]
In reaching its decision that the Fourth Amendment does not "[i]ncorporat[e] a presence requirement for misdemeanor arrests," the Eleventh Circuit pointed to (1) historical exceptions to the in-the-presence rule at common law, (2) the increasing impracticality of distinguishing misdemeanors from felonies in modern statutory schemes, and (3) the adequacy of the Fourth Amendment's protections even "absent a presence criterion."[11]
Gonzalez petitioned for certiorari, asking the Supreme Court to resolve whether the Fourth Amendment "incorporates [an] 'in-the-presence' limitation on warrantless misdemeanor arrests."[12]
Justice Sotomayor's Statement Respecting the Denial of Review
The Supreme Court denied Gonzalez's petition. In a statement respecting the Supreme Court's denial of review, Justice Sonia Sotomayor — joined by Justice Neil Gorsuch — noted that "[t]here is reason to think" the Fourth Amendment might "incorporate[ an] 'in-the-presence' limitation on warrantless misdemeanor arrests," particularly given that "the in-the-presence requirement existed in some form at the founding."[13]
She emphasized the court's repeated holding that the Fourth Amendment "must provide at a minimum the degree of protection the common law afforded at the time of its adoption," and reasoned that if founding-era common law included "some form of in-the-presence requirement" for warrantless misdemeanor arrests, "it follows that the Fourth Amendment likely does as well."[14]
Nevertheless, the justices concluded that "[i]mportant questions" regarding the scope of such a rule "impede[d] the Court's review of the question presented."[15] Justice Sotomayor therefore encouraged further "percolation on the in-the-presence rule's scope" and urged lower court judges to "give due regard to the full scope of the common-law rights now secured by the Fourth Amendment" in addressing the issue.[16]
Implications
It now falls to the criminal defense bar to take up that invitation. Defense counsel should continue pushing the originalist argument that the Fourth Amendment incorporates an in-the-presence limitation on warrantless misdemeanor arrests and create opportunities for the lower federal courts to further develop this body of law.
The stakes are considerable. Misdemeanor arrests are a routine feature of American law enforcement. As the petitioner in Gonzalez noted, the most comprehensive national study to date reports over 13 million misdemeanor cases filed annually — more than 40 per 1,000 people.[17] And those figures reflect only case filings, not arrests, suggesting the volume of warrantless misdemeanor arrests is even higher.[18]
Moreover, as the facts of Gonzalez illustrate, misdemeanor arrests often provide the basis for searches that lead to felony charges and may thus be prone to abuse by law enforcement officers looking for a pretext to conduct a search that would otherwise be unlawful.
Although Justice Sotomayor acknowledged the absence of a circuit split regarding whether the Fourth Amendment incorporates an in-the-presence requirement for warrantless misdemeanor arrests, disparities in enforcement persist at the ground level.[19]
Many states have such a requirement, while federal law does not. As a result, the admissibility of evidence "in much of the country" may depend not on a uniform constitutional rule, but on whether a prosecution is brought in state or federal court.[20]
Under the current framework, this critical question may hinge on "arbitrary criterion left to the sole discretion of prosecutors" — who are incentivized to charge routine state crimes in federal court to avoid the suppression of evidence recovered in connection with a misdemeanor arrest.[21]
This disparity raises access-to-justice concerns. Defendants arrested for identical conduct may face significantly different legal outcomes depending on the forum in which they are prosecuted, undermining both predictability and fairness in criminal adjudication.
Absent a clear constitutional rule, the right to challenge certain warrantless misdemeanor arrests and suppress evidence becomes a privilege of geography or prosecutorial discretion — rather than an equally available protection.
At a minimum, defendants should, where appropriate, keep pressing the originalist argument that misdemeanor arrests require a warrant if the crime is not committed in an officer's presence. Receptive lower federal courts have to date been few, but they are out there.
U.S. Circuit Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, for example, observed in Graves v. Mahoning in 2016 that the question continues to be an "open question at the Supreme Court," with "valid competing arguments that deserve to be addressed."[22] Judge Sutton also noted that U.S. Circuit Judges Frank Easterbrook and Steven Colloton of the U.S. Court of Appeals for the Seventh Circuit and the U.S. Court of Appeals for the Eighth Circuit, respectively, had "flagged the issue" as well.[23]
Notably, every circuit that has held the Fourth Amendment does not incorporate an in-the-presence requirement for warrantless misdemeanor arrests has relied on the Fourth Circuit's 1974 decision in Street v. Surdyka, which rejected the requirement based on the premise that the Supreme Court had not given "constitutional force to … the common law rule."[24]
But as Justice Sotomayor observed, that rationale may no longer withstand scrutiny. In a series of more recent decisions — including Kyllo v. United States, Torres v. Madrid, United States v. Jones, Virginia v. Moore, and Lange v. California — the court has reaffirmed that "the Fourth Amendment must protect at minimum those rights recognized by the founding-era common law."[25] Because Surdyka did not account for that principle, its continued validity is open to question.[26]
It takes only one originalist-inclined district court judge — or one appellate panel — to recognize the dubious reasoning of Surdyka and generate the circuit split that may get the attention of other defendants, jurists, scholars, and eventually the Supreme Court.
Nicolas Bourtin is a partner and the managing partner of the criminal defense and investigations group at Sullivan & Cromwell LLP.
Sam Bonafede is an associate at the firm.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Gonzalez v. United States
, 145 S. Ct. 529, 529 (2025) (quoting United States v. Gonzalez , 107 F. 4th 1304, 1306 (11th Cir. 2024)).[2] Id.
[3] See id. at 530.
[4] Id.
[5] Gonzalez, 107 F. 4th at 1307.
[6] See id.
[7] Id. at 1308.
[8] Id.
[9] Id. at 1310.
[10] Id.
[11] Id.
[12] Gonzalez, 145 S. Ct. at 529.
[13] Id. (citing Bad Elk v. United States
, 177 U.S. 529, 534–535 (1900) (collecting sources)).[14] Id. (internal quotations and citations omitted); see also id. at 531–32 (citing Kyllo v. United States
, 533 U.S. 27, 34 (2001); Torres v. Madrid , 592 U.S. 306, 316–317 (2021); United States v. Jones , 565 U.S. 400, 411 (2012); Virginia v. Moore , 553 U.S 164, 168 (2008); and Lange v. California , 594 U.S. 295, 309 (2021)).[15] Id.
[16] Id. at 533.
[17] See Gonzalez Rep. Br. 10 (citing Sandra G. Mayson & Megan T. Stevenson, Misdemeanors by the Numbers, 61 B.C. L. Rev. 971, 979 (2020)).
[18] See id.
[19] See Gonzalez, 145 S. Ct. at 532 (quoting Gonzalez, 107 F. 4th at 1309 ("[E]very circuit to face [the] issue has held that the Fourth Amendment does not include an in-the-presence requirement for warrantless misdemeanor arrests.")).
[20] See Gonzalez Rep. Br. 11.
[21] See id. at 11–12.
[22] Graves v. Mahoning
, 821 F. 3d 772, 778–79 (6th Cir. 2016). [23] Id. at 780 (citing their opinions from 1986 and 2010, respectively).
[24] Street v. Surdyka
, 492 F.2d at 371; see also Gonzalez, 145 S. Ct. at 532.[25] See Gonzalez, 145 S. Ct. at 532.
[26] See id.