United States of America v.  Gregory McNeill

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 06-4444 
GREGORY MCNEILL,
Defendant-Appellee. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4489 
GREGORY MCNEILL,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:03-cr-00033-AMD)
Argued: November 29, 2006
Decided: May 2, 2007
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
Reversed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Widener and Judge Motz joined.

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COUNSEL
ARGUED: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for the United States. Barry Coburn, TROUT &
CACHERIS, P.L.L.C., Washington, D.C., for Gregory McNeill. ON
BRIEF: Bonnie S. Greenberg, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for the United States. Matthew J. Mueller, Law Clerk,
TROUT & CACHERIS, P.L.L.C., Washington, D.C., for Gregory
McNeill.
OPINION
NIEMEYER, Circuit Judge:
Based on statements given by Gregory McNeill to FBI agents
while in state custody, McNeill was indicted for two bank robberies.
McNeill filed a motion to suppress the statements, contending that
they were given following an illegal arrest by Baltimore City police.
The district court granted the motion, concluding that the Fourth
Amendment does not permit a warrantless arrest for a misdemeanor
committed outside the officer’s presence and that the misdemeanor
for which McNeill was arrested was not committed in the presence of
the arresting officer. The government filed this interlocutory appeal
under 18 U.S.C. § 3731, seeking to reverse the district court’s sup-
pression order.
McNeill filed a cross-appeal, challenging the district court’s order
granting the government a motion for extension of time. He contends
that the extension of time improperly justified the government’s oth-
erwise untimely notice of appeal. He also requests that we dismiss the
appeal because the government untimely filed the certification man-
dated by 18 U.S.C. § 3731.
For the reasons that follow, we reject McNeill’s challenge to our
jurisdiction and deny his motion to dismiss the appeal. On the merits,
we reverse the district court’s suppression order because the arresting
officer had probable cause to believe that McNeill committed the
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Maryland misdemeanor offense of harassment in his presence and
therefore statements given during McNeill’s subsequent custody were
not the fruits of an arrest that violated the Fourth Amendment.
I
On January 7, 2003, at about 5:40 p.m., Tonya Malone called 911
from a 7-Eleven convenience store located on West Franklin Street in
Baltimore, Maryland, to request police protection from Gregory
McNeill. A Baltimore City police officer arrived within five minutes
and observed Malone stepping out of a telephone booth with several
children and McNeill standing next to her. Malone approached the
officer, and McNeill followed right beside her. Because each was
attempting to talk to the officer at the same time, the officer separated
them, directing McNeill to stand about ten feet away, still within ear-
shot of Malone.
The officer asked first for Malone’s side of the story. According to
the officer, Malone stated that "She wanted [McNeill] to leave her
alone," but "that he keeps following her and messing with her."
McNeill attempted to interrupt the officer’s interview of Malone,
prompting the officer to tell him to "chill out" while Malone spoke.
Malone told the officer that she had obtained a state court protective
order against McNeill. Upon hearing this, McNeill became agitated
and said, "I’m going to get you, bitch, for this." The officer thereupon
placed McNeill under arrest for "assault by threat," as he explained,
"because [McNeill] threatened [Malone] in the presence of me."
The officer then called the police dispatcher to verify whether
Malone had, in fact, obtained a protective order against McNeill. The
dispatcher told the officer that the police department’s system con-
tained no record of a protective order. In fact, however, a protective
order did exist but did not appear in the dispatcher’s system because
the Maryland district court had entered the order only a few hours ear-
lier.
While in custody at the Baltimore City police station in the West-
ern District, McNeill gave local detectives information relating to sev-
eral bank robberies, prompting the detectives to bring in the FBI to
help with the investigation. A few hours later, McNeill gave FBI
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agents a statement about bank robberies in which he and others were
involved. On the basis of the statements, McNeill was indicted in two
counts for two bank robberies, one occurring on November 12, 2002,
and another on December 14, 2002, in violation of 18 U.S.C.
§ 2113(a).
McNeill filed a motion to suppress the statements he gave in cus-
tody, alleging that they were the fruits of an illegal arrest under the
Fourth Amendment. In granting McNeill’s motion to suppress, the
district court stated that the police officer did not have probable cause
to believe that the Maryland misdemeanor of assault or harassment
had been committed in his presence. Accordingly, "[a]ny and all
statements made by Mr. McNeill after his arrest were obtained in vio-
lation of his Fourth Amendment rights to be free of unreasonable sei-
zure." The government filed a motion for reconsideration, and on
March 21, 2006, the district court denied the government’s motion to
reconsider, again reaching the merits of the suppression issue:
Because Officer McMillan was not present at the time
McNeill allegedly committed the alleged offense of harass-
ment under Maryland law, a misdemeanor, he could not
effect a warrantless arrest under the Fourth Amendment (as
made applicable to the states by the Fourteenth Amend-
ment), and, because the arrest violated the Fourth Amend-
ment, the fruits of the arrest, including McNeill’s statements
regarding other crimes, [are] properly suppressed. Wong
Sung v. United States, 371 U.S. 471, 484-86 (1963).
From the district court’s order denying the government’s motion to
reconsider, the government filed an interlocutory appeal pursuant to
18 U.S.C. § 3731. Section 3731 permits the government to appeal
from an order suppressing evidence, so long as the U.S. Attorney cer-
tifies to the district court that "the appeal is not taken for purpose of
delay and that the evidence is a substantial proof of a fact material in
the proceeding." The government’s notice of appeal, which was filed
on April 18, 2006, did not include the § 3731 certification. The gov-
ernment filed the certification on October 13, 2006, nearly six months
after it filed its notice of appeal.
McNeill filed a cross-appeal challenging the timeliness of the gov-
ernment’s appeal. He asserts that because the government did not
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obtain a valid extension for filing its motion for reconsideration, the
motion for reconsideration was untimely and therefore did not extend
the government’s time to appeal the suppression order. Because a
timely notice of appeal is a prerequisite to our jurisdiction under Fed-
eral Rule of Appellate Procedure 4, McNeill asks that we dismiss the
government’s appeal.
On our own initiative, we asked the parties also to brief the effect
of the government’s untimely filing of the certification required by 18
U.S.C. § 3731. See United States v. DeQuasie, 373 F.3d 509, 515 n.6
(4th Cir. 2004) (expressing an "assumption" that a § 3731 certification
must be filed "within the thirty-day period in which the United States
is permitted to notice an appeal under this statute").
II
We first address McNeill’s cross-appeal challenging our jurisdic-
tion. McNeill contends that the government’s motion for reconsidera-
tion of the district court’s June 9, 2005 suppression order was filed
late and therefore that the motion for reconsideration did not have the
effect of extending the time for appealing the suppression order. Thus,
the notice of appeal filed on April 18, 2006, was untimely. See 18
U.S.C. § 3731 (requiring that interlocutory appeals of suppression
orders be filed within 30 days after entry of the order). He also argues
that the district court’s post-appeal order dated April 24, 2006, grant-
ing the government an extension of time within which to file the
motion for reconsideration was without effect because the govern-
ment had already filed its appeal to this court.
The procedural facts are somewhat complex. The district court
granted McNeill’s motion to suppress by an order dated June 9, 2005.
An appeal from that order would ordinarily have to be filed by July
9, 2005. See 18 U.S.C. § 3731. Before the appeal deadline, on July
5, 2005, the government filed a motion for reconsideration, which
ordinarily would have extended the time for filing an appeal until the
court disposed of the motion for reconsideration. See United States v.
Ibarra, 502 U.S. 1, 4 n.2 (1991); Dickerson v. United States, 166 F.3d
657, 678 (4th Cir. 1999).
Two problems existed, however. The government inadvertently
filed all copies of its motion for reconsideration, including the origi-
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nal, with the district judge, rather than with the clerk of the court.
Also, the date on which the motion for reconsideration was filed even
with the district judge was beyond the 10 days allowed for filing
motions for reconsideration under District of Maryland Local Rule
105.10, albeit within the 30-day time period for taking an appeal.
Both the court and the parties, however, proceeded in the usual
course with the briefing and disposition of the government’s motion
for reconsideration. McNeill received the motion for reconsideration
at the time it was filed with the district judge, and he requested two
extensions of time for responding, which were agreed to by the gov-
ernment and granted by the court. McNeill’s response to the motion
for reconsideration, which was ultimately filed on August 1, 2005,
took no exception to the filing date of the motion for reconsideration.
Also, the district court ruled on the merits of the motion, despite the
court’s recognition that the motion had been filed with the district
judge, rather than with the clerk, and that it had been filed beyond the
10 days required by local rule. The court noted in its opinion:
According to the official clerk’s docket, the motion for
reconsideration was never filed. In a letter to chambers
dated July 5, 2005, the Government forwarded what it
described as "one courtesy copy" of the motion for reconsid-
eration. In fact, however, a recent examination of the "copy"
suggests that what was forwarded to chambers may not have
been a "copy" of the motion but the motion itself, inasmuch
as the "copy" contained a "live" signature of the Govern-
ment attorney on both the motion and the certificate of ser-
vice. Under the local rules of this court, "any motion to
reconsider any order issued by the Court shall be filed with
the Clerk not later than 10 days after entry of the order."
L.R. 105.10 (made applicable to criminal cases under L.R.
207) (emphasis added).
Nonetheless, the court did not impose a sanction for the deficiencies
and proceeded to decide the motion for reconsideration on the merits.
At the same time, the court filed the original copy of the motion for
reconsideration with the clerk, which the clerk docketed on March 21,
2006 (over eight months after it had been filed with the judge).
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Only after the district court circulated its ruling, which included its
observations of the defective filing of the motion for reconsideration,
did the parties react. The government filed a motion for extension of
time to correct the mistake in filing the original motion with the judge
rather than with the clerk, and the defendant opposed the motion for
extension of time, but did not refer to the violation of the local rule.
The court granted the extension by order dated April 26, 2006, which
was after the government had filed its notice of appeal. McNeill
cross-appealed from the court’s April 26 order.
While the requirements that pleadings be filed with the clerk and
within 10 days are mandatory, neither requirement denies the district
judge the authority to accept motions for filing in his chambers
beyond the time specified by the local rule. See Fed. R. Civ. P. 5(e)
("The filing of papers with the court as required by these rules shall
be made by filing them with the clerk of court, except that the judge
may permit the papers to be filed with the judge") (emphasis added);
Fed. R. Crim. P. 49(d) (adopting the civil rules for filing of papers);
Fed. R. Crim. P. 45(b) (authorizing the court to enlarge time periods
imposed by the rules except for the time to take action under Rule
35). Thus, the district court had discretion to accept the motion for
reconsideration without sanctioning the filing deficiencies. And this
is precisely what the court did by acting on the merits of the motion,
even while understanding that it had been filed after the local deadline
and with the judge, not the clerk. The court acted well within its dis-
cretion. No one was prejudiced by the errors — each party had full
notice of the other party’s position and acted as if the papers had been
timely filed with the clerk. In matters such as these, we give substan-
tial deference to the district court’s management of its affairs. We find
no abuse of discretion in its accepting the government’s filing of the
motion for reconsideration and deciding it on its merits. See U.S.
Fidelity & Guar. Co. v. Laurenson, 334 F.2d 464, 466-67 (4th Cir.
1964) ("A court is, of course, the best judge of its own rules").
As for McNeill’s argument that the district court had no authority
to extend the time for filing the motion for reconsideration, Federal
Rule of Criminal Procedure 45 provides to the contrary, expressly
authorizing enlargement of time periods imposed by the Rules. The
fact that the confirming order was entered after the time for appeal
does not affect the court’s pre-appeal willingness to decide the motion
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for reconsideration without enforcing the local rule deadline. Accord-
ingly, we reject McNeill’s jurisdictional arguments.
III
In this case, we are once again presented with the government’s
failure to file timely the certification required for an interlocutory
appeal under 18 U.S.C. § 3731. Section 3731 requires the U.S. Attor-
ney to certify that the interlocutory appeal is not taken "for purpose
of delay" and that the evidence at issue is important to the govern-
ment’s proof of its case. The government filed its appeal on April 18,
2006, but did not file its § 3731 certification with the district court
until October 13, 2006, when the appeal was being briefed and less
than two months before oral argument. We have previously expressed
our assumption that the certification must be filed within the 30-day
period which the United States has to notice an appeal under § 3731.
See DeQuasie, 373 F.3d at 515 n.6; In re Grand Jury Subpoena, 175
F.3d 332, 337 (4th Cir. 1999).
Upon our request for supplemental briefing on this issue, McNeill
now urges that the government’s interlocutory appeal be dismissed
for its failure to file the § 3731 certification timely, arguing:
As we pointed out in our briefs, Mr. McNeill has been
incarcerated for years on this case, and remains in jail at
this moment because of it. Accordingly, he has suffered
severe prejudice resulting from the government’s failure to
adhere to the certification requirement, a requirement that
was unambiguously emphasized by this Court in two pub-
lished opinions in 2004. The government has been on notice
since that time of the importance of this Court placed on the
certification requirement and the consequences of failing to
adhere to it.
In cases decided in 2004, we addressed similar instances of the
government’s failure to file § 3731 certifications timely. See DeQua-
sie, 373 F.3d at 515-17; United States v. Hatfield, 365 F.3d 332-38
(4th Cir. 2004). In Hatfield we admonished, "we take this opportunity
to emphasize the importance of the certification requirement and to
serve notice on the government that future failures to timely file will
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not be taken lightly." Hatfield, 365 F.3d at 338. We now have two
more cases raising the same question, despite our earlier warning —
this case and United States v. Newland, No. 06-4219, which is being
decided along with this case. Because of the importance of § 3731
certifications to the just and speedy disposition of criminal cases, we
address the issue once again, yet more fully.
The facts in this case are familiar. Even though there is no sugges-
tion that the government has acted in bad faith or attempted in any
manner to delay McNeill’s prosecution, its continuing administrative
deficiencies have contributed to the failure to certify the appeals both
in this case and in Newland. The Assistant U.S. Attorney who handled
this case below, and who filed the notice of appeal, left the U.S.
Attorney’s office shortly after filing the appeal. He told his successor,
however, that a § 3731 certification needed to be filed but noted erro-
neously that the certification "would be timely if filed at any time
prior to oral argument." It was filed before oral argument but almost
six months after the appeal was filed.
Despite the late certification, the government did engage in a con-
scientious pre-appeal analysis. Following entry of the district court’s
order denying reconsideration of its suppression order, the Assistant
U.S. Attorney in charge of the case obtained approval from the U.S.
Attorney to file this appeal. The U.S. Attorney in turn obtained
approval from the Solicitor General of the United States, in accor-
dance with internal Department of Justice policy. Following that pro-
cess, the successor Assistant U.S. Attorney handling the appeal pre-
sented a § 3731 certification form to the U.S. Attorney for signature
on September 14, 2006, for filing in this court. The U.S. Attorney
signed the certification. During the course of working on the reply
brief, the U.S. Attorney noticed that the certification he had signed
had been filed in this court, not the district court as required by
§ 3731. He promptly had the certificate filed in the district court, but
this was now October 13, 2006, almost six months after the notice of
appeal was filed. This prompted the U.S. Attorney to check with the
Assistant U.S. Attorney handling a similar interlocutory appeal in
United States v. Newland, No. 06-4219, and the U.S. Attorney learned
that the § 3731 certification also had not been filed in that case. The
U.S. Attorney then directed that a certification be filed in Newland.
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Addressing the administrative lapses in complying with § 3731, the
U.S. Attorney took several steps to improve the administration of
interlocutory appeals under § 3731. The following is an excerpt from
his affidavit outlining the steps that he initiated not only in these two
cases, but also more generally in the District of Maryland and beyond:
9. On October 12, 2006, I sent an email message to the
Chief of the Appellate Section, Criminal Division, U.S.
Department of Justice. My message said that my attorneys
had been unaware of the certification requirement and that
I could not find any guidance about the issue in the United
States Attorneys’ Manual. I inquired whether the Criminal
Division had provided any guidance to U.S. Attorneys about
the need to file a § 3731 certification when appealing sup-
pression orders.
10. I drafted a new addition to our Office Policy Manual
establishing standards for handling affirmative criminal
appeals on October 13, 2006.
11. On October 24, 2006, I sent an email message to all
Maryland Assistant U.S. Attorneys with the final version of
our new written policy governing affirmative appeals. (See
Attachment B) Our Manual now states that a § 3731 certifi-
cation must be filed in the district court at the same time the
notice of appeal is filed. The certification shall be included
in the Joint Appendix, and the Statement of Jurisdiction in
our appellate brief will state that the certification was filed
and that the Solicitor General has personally approved the
appeal. Our Office Policy Manual previously did not include
any guidance concerning § 3731.
12. On October 27, 2006, I sent an email message to the
Chief of the Appellate Section, Criminal Division, U.S.
Department of Justice, stating that several of my office’s
most experienced attorneys were not aware of the § 3731
certification requirement and recommending that her office
make it a routine practice to alert every Assistant U.S. Attor-
ney who files an affirmative appeal about the need to com-
ply with the statutory requirement. She agreed to do so.
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13. On October 30, 2006, I forwarded our new written
policy by email to every Fourth Circuit U.S. Attorney, with
a message stating that it had recently come to my attention
that some of my prosecutors were unaware of the certifica-
tion requirement and recommending that each of them
ensure compliance with it.
14. On November 21, 2006, I wrote to the Assistant
Attorney General for the Criminal Division, U.S. Depart-
ment of Justice, and the Solicitor General, explaining the
problem and asking that the United States Attorneys’ Man-
ual be updated to mention the government’s duty to file a
§ 3731 certification along with the notice of appeal in inter-
locutory appeals from orders suppressing evidence. (See
Attachment C)
Oral argument in this case took place on November 29, 2006, as
originally scheduled. The delayed filing of, and the supplemental
briefing on, the § 3731 issue thus did not delay this case. The U.S.
Attorney himself argued this appeal.
Section 3731 authorizes the United States to take interlocutory
appeals from decisions or orders of a district court "suppressing or
excluding evidence or requiring the return of seized property in a
criminal proceeding." But that authorization is conditioned on the
U.S. Attorney’s filing a certification in the district court "that the
appeal is not taken for purpose of delay and that the evidence is a sub-
stantial proof of fact material in the proceeding."
The authorization to file these interlocutory appeals is important to
the prosecution of criminal cases because it permits the government
to obtain appellate review, before jeopardy attaches, of trial court
decisions suppressing what the government believes is evidence nec-
essary to prove a crime. But because such an appeal necessarily dis-
rupts trial court proceedings, the authorization contains an important
limitation that is intended to protect defendants from undue delay. As
we stated in DeQuasie,
The certification requirement of § 3731 operates to ensure
that before the United States interrupts a criminal proceed-
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ing (and thereby delays a defendant from obtaining resolu-
tion of the charges against him) by taking an interlocutory
appeal, it has evaluated whether the appeal is warranted.
373 F.3d at 515. Thus, the filing of a § 3731 certification is not
merely an administrative formality; it serves the important purpose of
assuring the defendant’s protection from undue delay.
Section 3731 does not give a deadline by which the government
must file the certification. We have assumed, however, without decid-
ing until now, that because it is necessary to the perfection of an
appeal, the government must file the certification within the 30-day
period for appeal of the interlocutory order. See 18 U.S.C. § 3731;
DeQuasie, 373 F.3d at 515 n.6; In re Grand Jury Subpoena, 175 F.3d
at 337. To give effect to the § 3731 protections and to remove doubt
about when it must be filed, we now hold that the certification must
be filed with the notice of appeal filed by the government under
§ 3731. This requirement assures that the government will have deter-
mined that the appeal is warranted under § 3731 before disrupting the
trial process by noticing an appeal. In imposing this requirement, we
join other courts that have imposed a similar requirement. See, e.g.,
United States v. Salisbury, 158 F.3d 1204, 1207 (11th Cir. 1998);
United States v. Bailey, 136 F.3d 1160, 1163 (7th Cir. 1998).
The appropriate sanction for the failure to file a timely § 3731 cer-
tification is a more complex subject. We have already noted that such
a failure does not deprive us of jurisdiction over the appeal. Hatfield,
365 F.3d at 337. Nonetheless, the failure constitutes an irregularity in
perfecting the appeal, and therefore it is a ground "for the court of
appeals to act as it considers appropriate, including dismissal of the
appeal." Fed. R. App. P. 3(a)(2); see also Hatfield, 365 F.3d at 337.
We accordingly have discretion to impose any sanction necessary to
enforce the requirement of filing a § 3731 certification, including dis-
missal of the appeal. Several courts have imposed the sanction of dis-
missal. See, e.g., Salisbury, 158 F.3d 1204, 1207 (11th Cir. 1998);
United States v. Carrillo-Bernal, 58 F.3d 1490, 1497 (10th Cir. 1995).
Short of dismissal, however, such sanctions might be directed to the
use of the evidence at issue, cf. Fed. R. Civ. P. 37(b)(2), or to the pun-
ishment of the individual attorney failing to comply.
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Because dismissal is an ultimate sanction that could adversely
affect the public interest, it should be imposed only in the unusual cir-
cumstances where the government’s conduct has essentially effected
a forfeiture of its right to an interlocutory appeal or where the defen-
dant has been so prejudiced by the government’s failure that dismissal
is the only just recourse. Moreover, we must keep in mind Congress’
instruction that its authorization of interlocutory appeal be liberally
construed. See 18 U.S.C. § 3731.
To be sure, any sanction must be tailored to the particular circum-
stances of a given case. In considering whether to grant a motion to
dismiss, we have articulated various factors to consider, including: (1)
how late the certification was filed; (2) the reason for its lateness; (3)
whether the government engaged in "a conscientious pre-appeal anal-
ysis" and is appealing in good faith; (4) whether the government
acknowledges the importance of the certification; (5) prejudice to the
defendant; (6) the need for appellate clarification of novel or complex
legal issues; and (7) "whether the appeal should be heard in the inter-
ests of justice." Hatfield, 365 F.3d at 337-38; see also DeQuasie, 373
F.3d at 516. At bottom, because the certification requirement ulti-
mately serves to protect the defendant from undue delay, the most
important factors to consider must relate to whether the government’s
failure to file the certification as required caused "actual substantial
prejudice" to the defendant. See DeQuasie, 373 F.3d at 517 ("Courts
are not likely to dismiss an appeal unless the defendant is able to
show ‘actual substantial prejudice’" (quoting United States v. Smith,
263 F.3d 571, 578 (6th Cir. 2001))).
In this case, we are presented with the unfortunate fact that after
our repeated warnings in 2004, the government continued to neglect
the statutory requirements as we construed them. At the least, the
government’s failures are shameful lapses in professionalism. To his
credit, however, the U.S. Attorney himself stepped into this case to
address the problem. He noted that the Assistant U.S. Attorneys
involved in this case and in Newland were not personally aware of our
2004 decisions and that the requirements of those decisions were not
reflected in the manuals used by Assistant U.S. Attorneys. He has
acknowledged the importance of the certification requirement, and
more importantly he has evidenced that acknowledgment by taking
significant steps to prevent future lapses. He has notified all of his
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assistants as well as all other U.S. Attorneys in the Fourth Circuit; he
has amended the U.S. Attorneys’ practice manual for his office; and
he has requested similar amendments to the manuals issued by the
Department of Justice. Thus, Hatfield factor (4) weighs in favor of the
government.
Factors (3), (6), and (7) also weigh in favor of the government.
There is no suggestion that the government acted in bad faith or
attempted in any way to delay the prosecution of McNeill. To the
contrary, the suppression order in this case effectively ended the pros-
ecution, and the U.S. Attorney averred that he believed an appeal
should be pursued "because the district court had erred and sup-
pressed evidence that was important evidence of the serious crimes
alleged in the indictment" — the evidence necessary to prosecute two
bank robberies. The fact that the Solicitor General has authorized this
appeal also supports that conclusion. See United States v. Romaszko,
253 F.3d at 757, 760 (2d Cir. 2001) (noting the Solicitor General’s
authorization confirmed that the prosecutor "carefully analyzed the
case before deciding to appeal").
McNeill argues that factor (5) weighs in his favor in that the
untimely filing of the certification caused him prejudice. He argues
that his continuing confinement pending trial constitutes prejudice.
He receives little benefit from his argument, however, because his
continuing confinement would not have been obviated by the govern-
ment’s timely filing of a certification, for the appeal has proceeded on
time despite the delay in filing the certification.
He does receive benefit from consideration of factors (1) and (2),
as the certification was late by several months, and the reasons for its
lateness were professional lapses.
On balance, we conclude that consideration of all of the relevant
factors weighs in favor of the government, and accordingly we deny
McNeill’s motion to dismiss.
IV
In granting the motion to suppress, the district court concluded that
no Maryland misdemeanor offense had been committed in the pres-
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ence of the arresting officer and, therefore, the officer had no basis
for a warrantless arrest. See Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001) ("If an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest the
offender"); Maryland v. Pringle, 540 U.S. 366, 370 (2003) ("A war-
rantless arrest of an individual in a public place for a felony, or a mis-
demeanor committed in the officer’s presence, is consistent with the
Fourth Amendment if the arrest is supported by probable cause");
United States v. Dickey-Bey, 393 F.3d 449, 453 n.2 (4th Cir. 2004)
("If the crime is a misdemeanor, however, it must be committed in the
officer’s presence"). Concluding that the State’s warrantless arrest of
McNeill was illegal, the court suppressed the statements made by
McNeill following his arrest.
The government contends that the Fourth Amendment does not
restrict an officer’s authority to make an arrest for a misdemeanor
offense to circumstances in which the misdemeanor is committed in
the officer’s presence. It argues that the officer only needs probable
cause to believe that an offense, even a misdemeanor offense, was
committed. It notes that the Supreme Court did not reach the issue in
Atwater, see Atwater, 532 U.S. at 341 n.11 ("We need not, and thus
do not, speculate whether the Fourth Amendment entails an ‘in the
presence’ requirement for purposes of misdemeanor arrests"), and that
the statement in Pringle was simply dictum because the case involved
the warrantless arrest of a defendant for a felony that occurred in the
officer’s presence. The government argues that, absent a more bind-
ing statement by the Supreme Court, this circuit is guided by Street
v. Surdyka, 492 F.2d 368, 372 (4th Cir. 1974), in which we explained,
"We do not think the fourth amendment should now be interpreted to
prohibit warrantless arrests for misdemeanors committed outside of
the officer’s presence." See also United States v. Humphries, 372 F.3d
653, 658 (4th Cir. 2004) (validating a felony arrest but citing Surdyka
approvingly and noting that it sanctioned a warrantless arrest in a
public place for "a misdemeanor committed outside an officer’s pres-
ence").
Several other circuits have held that the Fourth Amendment con-
tains no "in the presence" requirement, and none have reversed their
position in the wake of Atwater and Pringle. See Woods v. City of
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Chicago, 234 F.3d 979, 992-95 (7th Cir. 2000); Pyles v. Raisor, 60
F.3d 1211, 1215 (6th Cir. 1995); Fields v. City of South Houston, 922
F.2d 1183, 1189 (5th Cir. 1991); Barry v. Fowler, 902 F.2d 770, 772
(9th Cir. 1990).
In the end, however, we need not decide whether the Fourth
Amendment contains an "in the presence" requirement for warrantless
misdemeanor arrests because we find that the officer who arrested
McNeill had probable cause to believe, based on the evidence he wit-
nessed, that McNeill did commit the Maryland misdemeanor offense
of harassment in his presence. Although the arresting officer stated
that he was arresting McNeill for committing an "assault by threat"
— which is not an actual offense in Maryland — the arrest is none-
theless valid if, based on the facts known to the officer, objective
probable cause existed as to any crime. See Devenpeck v. Alford, 543
U.S. 146, 154-55 (2004).
Maryland law defines the misdemeanor offense of harassment as
follows:
(a) A person may not follow another in or about a public
place or maliciously engage in a course of conduct that
alarms or seriously annoys the other:
(1) with the intent to harass, alarm, or annoy the
other;
(2) after receiving a reasonable warning or request to
stop by or on behalf of the other; and
(3) without a legal purpose.
Md. Code Ann., Crim. Law § 3-803 (emphasis added). As applied to
this case, therefore, McNeill would have committed this offense if he
(1) followed another person (2) with the intent to harass (3) after
being warned (4) without a legal purpose.
While Maryland imposes an "in the presence" requirement for war-
rantless misdemeanor arrests, see Stanley v. State, 186 A.2d 478, 481
(Md. 1962), it does not mandate that every element of the crime occur
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in the officer’s presence, so long as the officer had sufficient evidence
of all the elements and some were committed in his presence. For
example, Maryland’s highest court has explained:
Where some evidence of the commission of a misdemeanor
reaches an officer through his senses, and it is augmented by
other strongly persuasive facts in his possession, all of
which is sufficient to convey virtual knowledge to any nor-
mal mind that the misdemeanor is then being committed, he
may act upon such information as being tantamount to
actual knowledge that the misdemeanor is being committed.
Davids v. State, 118 A.2d 636, 638 (Md. 1955). Thus, Maryland
courts have held that a misdemeanor is committed in the officer’s
presence when the officer happened upon an ongoing crime, even
though some elements of the crime occurred before the officer
arrived. In Robinson v. State, 243 A.2d 879, 886-87 (Md. Ct. Spec.
App. 1968), a police officer observed a cut lock on a fence gate and
a broken door on a storehouse and then saw the defendant on the
premises. The court concluded that this constituted the commission of
breaking and entering a storehouse in the presence of the officer, even
though the actual breaking and entering occurred before the officer
arrived.
In this case, the officer knew upon arriving at the scene that
Malone had called 911 to request protection from McNeill. Malone
confirmed that McNeill was "following" her and "messing" with her
and that she had resorted to obtaining a protective order against
McNeill. Additionally, the officer observed McNeill follow Malone
to the officer, albeit beside her, and attempt to interrupt the officer’s
interview of Malone — to the point of having to tell McNeill to "chill
out." He also witnessed McNeill tell Malone, "I’m going to get you,
bitch, for this."
These facts were more than sufficient to permit the officer reason-
ably to conclude that before his arrival, and at the scene, McNeill had
pursued and was continuing to pursue Malone, after being warned to
leave her alone, in an aggressive and threatening manner. This consti-
tuted "following" "with the intent to harass" or "alarm." Not only was
this pursuit manifestly harassing or alarming, it was also without a
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legal purpose. Like the officer encountering an ongoing breaking-and-
entering in Robinson, the officer here had probable cause to believe
that he was witnessing the ongoing misdemeanor offense of harass-
ment which began before Malone obtained the protective order and
continued in the officer’s presence, culminating with the threat made
by McNeill that he would "get" Malone. Accordingly, we find that the
officer’s arrest of McNeill did not violate the Fourth Amendment.
McNeill’s subsequent statements made while in custody for harass-
ing Malone therefore were not the fruits of an illegal arrest and should
not have been suppressed. The district court’s suppression order is
accordingly
REVERSED.
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