Gonzalez v. United States

1 Cite as: 604 U. S. ____ (2025)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
VICTOR JAVIER GRANDIA GONZALEZ v. UNITED
STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 24–5577. Decided February 24, 2025
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR, with whom JUSTICE
GORSUCH joins, respecting the denial of certiorari.
Founding-era common law gave officers no authority to
make an “arrest without a warrant, for a mere misde-
meanor not committed in [their] presence.” Bad Elk v.
United States, 177 U. S. 529, 534–535 (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 re-
quirement existed in some form at the founding. Ibid. This
Court has often held, moreover, that the Fourth Amend-
ment “‘must provide at a minimum the degree of protec-
tion’” the common law afforded at the time of its adoption.
Lange v. California, 594 U. S. 295, 309 (2021) (quoting
United States v. Jones, 565 U. S. 400, 411 (2012)).
Important questions about the in-the-presence rule and
its scope remain, and in this case they impede the Court’s
review of the question presented. In an appropriate case,
however, the Court should grant review to consider
whether and to what extent the Fourth Amendment incor-
porates the in-the-presence rule.
I
On an early July morning, around 5 o’clock, two Miami
Dade police officers encountered petitioner Victor Gonzalez

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OTOMAYOR, J.
“ ‘walking in the middle of the street’ ” in a residential neigh-
borhood. 107 F. 4th 1304, 1306 (CA11 2024). The officers,
who had received a 911 call reporting a “‘white male casing
the area,’” ibid., engaged Gonzalez in brief conversation
and arrested him for the Florida misdemeanor of “loitering
and prowling,” id., at 1307; see Fla. Stat. Ann. §856.021
(2014). They performed a search incident to the arrest,
which revealed several pieces of mail addressed to neigh-
borhood residents. 107 F.4th, at 1307. A grand jury there-
after charged Gonzalez with possessing stolen mail, a fed-
eral felony. See 18 U. S. C. §1708.
Gonzalez moved to suppress the evidence against him,
appealing to the in-the-presence rule. Because he did not
commit any misdemeanor in the officers’ presence, he ar-
gued, they lacked probable cause to arrest him, and thus to
conduct the search. When the District Court rejected that
argument, Gonzalez pleaded guilty but reserved his right to
appeal.
The Eleventh Circuit affirmed. It acknowledged that the
common law permitted warrantless arrests for misdemean-
ors “in narrower circumstances than warrantless arrests
for felonies,” because, unlike in the case of misdemeanors,
“an officer [could] conduct warrantless arrests for felonies
committed outside of their presence.” 107 F. 4th, at 1308
(citing 1 M. Hale, History of the Pleas of the Crown 587–
590 (1736); 2 id., at 86–90; 4 W. Blackstone, Commentaries
on the Laws of England 288–292 (1772)). The court none-
theless held that “the Fourth Amendment does not require
a misdemeanor to occur in an officer’s presence to conduct
a warrantless arrest.” 107 F. 4th, at 1310. As the Eleventh
Circuit saw things, the Fourth Amendment does not incor-
porate the in-the-presence rule because (1) the rule was
subject to exceptions at common law, (2) “the technicalities
of distinguishing between misdemeanors and felonies ap-
pears impracticable in today’s legal environment,” and (3)

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Statement of S
OTOMAYOR, J.
the Fourth Amendment is “properly protect[ive]” even “ab-
sent a presence criterion.” Ibid.
II
A
“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, 115 U. S. 487, 498–
499 (1885) (collecting authorities); see also Bad Elk, 177
U. S., at 534 (same). Instead, as Sir Matthew Hale summa-
rized 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.” 1 History
of the Pleas of the Crown, at 587; see also 4 Blackstone,
Commentaries, at 289 (justice of the peace could arrest fel-
ons “upon probable suspicion,” but could arrest for breach
of the peace only if committed “in his presence”); W.
Schroeder, Warrantless Misdemeanor Arrests and the
Fourth Amendment, 58 Mo. L. Rev. 771, 787–789 (1993)
(reviewing English jurisprudence establishing the in-the-
presence rule).*
After the founding, American States continued to abide
by the in-the-presence rule almost without exception. See,
e.g., id., at 847–848; 1 J. Archbold & T. Waterman, Criminal
Procedure, Pleading and Evidence, in Indictable Cases
103–104 (7th ed. 1860) (summarizing state of the English
common law and the law in the American States). Indeed,
during the 19th and 20th centuries, state courts repeatedly
——————
*Some of these authorities can be read more narrowly as authorizing
warrantless misdemeanor arrests only for breaches of the peace, but this
Court declined to adopt that more limiting reading in Atwater v. Lago
Vista, 532 U. S. 318 (2001) because of disagreement among common-law
authorities.

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OTOMAYOR, J.
reaffirmed the rule’s continued vitality in the face of at-
tempts to expand warrantless arrest powers. See, e.g.,
Commonwealth v. Carey, 66 Mass. 246 (1853) (“A constable
cannot, without a warrant, arrest a person guilty of a past
offence, unless such offence amounts to a felony”); In re
Way, 41 Mich. 299, 304, 1. N. W. 1021, 1024 (1879) (“An ar-
rest without warrant has never been lawful except . . . in
felony and in breaches of the peace committed in presence
of the officer”); In re Kellam, 55 Kan. 700, 41 P. 960 (1895)
(invalidating as unconstitutional a law permitting warrant-
less arrest on mere suspicion of misdemeanor); Ex parte
Rhodes, 202 Ala. 68, 73, 79 So. 462, 467 (1918) (“[N]o mu-
nicipal ordinance could authorize . . . or make . . . reasona-
ble” warrantless arrest for a misdemeanor not committed
in the presence); Hughes v. State, 145 Tenn. 544, 569, 238
S. W. 588, 595 (1922) (“An officer cannot lawfully arrest a
person without a warrant . . . where the facts constituting
the offense are incapable of being observed or are not ob-
served by the officer”); Orick v. State, 140 Miss. 184, 200,
105 So. 465, 469 (1925) (“[T]he statement that an officer at
common law could not arrest a person for a misdemeanor
not committed in his presence without a warrant is sus-
tained by the overwhelming weight of authority”). Today,
most States continue to “hold to the view that a warrantless
misdemeanor arrest may be made only for an offense com-
mitted ‘in the presence’” of the arresting officer. 3 W.
LaFave, Search and Seizure §5.1(c) (6th ed. 2024).
Florida, too, retains an in-the-presence rule. See Fla.
Stat. Ann. §901.15(1) (“A law enforcement officer may ar-
rest a person without a warrant when . . . [t]he person has
committed a felony or misdemeanor or violated [an ordi-
nance] in the presence of an officer”). Its loitering and
prowling statute, however, provides that officers “may ar-
rest any suspected loiterer or prowler without a warrant in
case delay in procuring one would probably enable [the loi-

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OTOMAYOR, J.
terer] to escape arrest.” §856.031. That provision appar-
ently allowed the officers here to arrest Gonzalez as a “sus-
pected loiterer or prowler,” ibid., despite the fact that “all
[they] saw was a man walking down a neighborhood street
in the early morning,” 107 F. 4th, at 1312.
B
The Eleventh Circuit thought Gonzalez’s arrest permis-
sible 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, 532 U. S. 318, 340, n. 11
(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.’” Lange, 594
U. S., at 309 (quoting Jones, 565 U. S., at 441); Torres v.
Madrid, 592 U. S. 306, 316–317 (2021) (“[o]ur precedent
protects ‘that degree of privacy against government that ex-
isted when the Fourth Amendment was adopted’”) (quoting
Kyllo v. United States, 533 U. S. 27, 34 (2001))); Virginia v.
Moore, 553 U. S 164, 168 (2008) (“We look to the statutes
and common law of the founding era to determine the
norms that the Fourth Amendment was meant to pre-
serve”). Precedent and historical evidence suggest, moreo-
ver, that the common law included at least some form of in-
the-presence requirement for warrantless misdemeanor ar-
rests. See supra, at 3–4. If that is right, it follows that the
Fourth Amendment likely does as well. Lange, 594 U. S.,
at 309.
The federal and state courts have reached diverging con-
clusions about the continued vitality of the in-the-presence
rule. As explained earlier, most States continue to abide by

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OTOMAYOR, J.
the in-the-presence rule, see supra, at 4, and several state
courts have continued to accord it constitutional weight.
See, e.g., State v. Barton, 669 S. W. 3d 661, 665 (Mo. 2023)
(this Court’s precedent leaves “no doubt” that the Fourth
Amendment incorporates the in-the-presence requirement
for warrantless misdemeanor arrests); Pacheco v. State, 465
Md. 311, 330–331, 214 A. 3d 505, 516–517 (2019) (reaffirm-
ing in-the-presence rule); Ewing v. State, 300 So. 2d 916,
919 (Miss. 1974) (similar); see also State v. Ochoa, 2008–
NMSC–023, 143 N. M. 749, 182 P. 3d 130 (discussing scope
of in-the-presence rule). By contrast, “every circuit to face
[the] issue has held that the Fourth Amendment does not
include an in-the-presence requirement for warrantless
misdemeanor arrests.” 107 F. 4th, at 1309 (internal quota-
tion marks omitted).
As the Eleventh Circuit recognized, each Circuit to have
considered the issue relied on Street v. Surdyka, 492 F. 2d
368 (1974), a case out of the Fourth Circuit that rejected the
in-the-presence rule as “impractical and illogical.” Id., at
371–373. Surdyka, however, crucially rested on the prem-
ise that this Court had not given “constitutional force” to
the common-law rule. Id., at 371. That may have been true
at the time. This Court’s intervening decisions in Kyllo,
Madrid, Jones, Moore, and Lange all say, however, that the
Fourth Amendment must protect at minimum those rights
recognized by the founding-era common law. Because the
Fourth Circuit did not consider that possibility in Surdyka,
it is unclear whether that decision remains good law today.
The Eleventh Circuit decision, too, failed adequately to
address this Court’s recent Fourth Amendment precedents.
Two of its three reasons for rejecting Gonzalez’s arguments
relied on its independent assessment of reasonableness and
practicality. 107 F. 4th, at 1310. For example, the Court
simply asserted that “Fourth Amendment rights are
properly protected absent a presence criterion.” Ibid. Yet
Fourth Amendment questions cannot be resolved simply by

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asking whether, in the courts’ view, a criterion is necessary
to protect one’s privacy interests. To be sure, courts today
may have to confront questions about “how to apply the
Fourth Amendment to a new phenomenon.” Carpenter v.
United States, 585 U. S. 296, 309 (2018). As explained,
however, this Court has said that the Fourth Amendment
must at minimum provide those protections that the com-
mon law guaranteed. Lange, 594 U. S., at 309.
In rejecting the in-the-presence rule altogether, the Elev-
enth Circuit also remarked that the misdemeanor-felony
distinction has shifted dramatically since the founding. 107
F. 4th, at 1310. That is true, but it cuts in favor of Gonzalez,
not against him. Even very serious crimes that are now
felonies were misdemeanors at common law. “For example,
all attempt crimes were only misdemeanors . . . as were as-
saults, batteries, woundings, and even kidnappings.” T.
Davies, Recovering the Original Fourth Amendment, 98
Mich. L. Rev. 547, 630, n. 220 (1999) (citing 4 W. Black-
stone, Commentaries on the Laws of England 216 (1769)).
In light of the modern expansion of the class of felony
crimes, even a categorical in-the-presence rule would be
substantially less protective than it was at the founding.
That a majority of States retain the in-the-presence re-
quirement for misdemeanor arrests, moreover, is in tension
with the Eleventh Circuit’s concern that “[i]ncorporating a
presence requirement for misdemeanor arrests would likely
muddy the waters more than it would protect any addi-
tional privacy interests.” 107 F. 4th, at 1310.
C
The Eleventh Circuit correctly recognized that the in-the-
presence requirement does not appear to have been abso-
lute. Ibid. Most notably, “[f]rom the enactment of the Stat-
ute of Winchester in 1285, through its various readoptions
and until its repeal in 1827, night watchmen were author-

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OTOMAYOR, J.
ized and charged” to arrest suspicious “‘nightwalkers.’” At-
water, 532 U. S., at 333 (footnote omitted).
The degree to which that exception made it to the early
American States is unclear, and it complicates Gonzalez’s
case. After all, the Florida statute at issue here arguably
resembles the old nightwalker statutes. It makes it a mis-
demeanor 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 reasona-
ble alarm or immediate concern for the safety of per-
sons or property in the vicinity.” Fla. Stat. Ann.
§856.021(1).
Whether a warrantless arrest under such a provision is con-
sistent with a historical “nightwalker” exception, and
whether founding-era common law incorporated that excep-
tion, are difficult questions. On the one hand, English law
permitted the arrest of “ ‘any suspicious night-walker’” who
could be detained “ ‘till he give good account of himself.’”
Atwater, 532 U. S., at 333. On the other, by the 19th cen-
tury some American state courts had rejected as unlawful
warrantless arrests even under circumstances where the
nightwalker statutes might have permitted them. See, e.g.,
In re Way, 41 Mich., at 301, 1 N. W., at 1021 (granting ha-
beas relief to one arrested on suspicion of “loitering and
rambling about . . . and not giving a good account of her-
self ”); In re Kellam, 55 Kan., at 701, 41 P., at 961 (invali-
dating statute authorizing arrest of “‘persons found under
suspicious circumstances, who cannot give a good account
of themselves’”); Pinkerton v. Verberg, 78 Mich. 573, 584–
585, 44 N. W. 579, 583 (1889) (invalidating nighttime arrest
of a woman found under circumstances raising a suspicion
of prostitution who “failed to take account of herself”).
Because it is an open question whether Gonzalez’s arrest

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falls within a historical exception to the in-the-presence re-
quirement, this is an unsuitable case to consider the gen-
eral rule. This case is complicated for another reason, too:
the police may have had probable cause to arrest Gonzalez
for felony trespass, and all agree that the in-the-presence
rule does not apply to felonies. The petition nonetheless il-
lustrates the need for percolation on the in-the-presence
rule’s scope. As some of the courts of appeal have recog-
nized, it remains an open question whether and to what ex-
tent the Fourth Amendment incorporates the in-the-pres-
ence rule. See, e.g., Graves v. Mahoning, 821 F. 3d 772, 780
(CA6 2016); Gilmore v. City of Minneapolis, 837 F. 3d 827,
834 (CA8 2016). This Court would benefit from further con-
sideration of that question by the lower courts. In consid-
ering the issue, courts should give due regard to the full
scope of the common-law rights now secured by the Fourth
Amendment.