Nic Bourtin, Managing Partner of Sullivan & Cromwell’s Criminal Defense and Investigations Group, and associate Sam Bonafede, co-authored an article in Law360 discussing the constitutionality of warrantless misdemeanor arrests for offenses committed outside the arresting officer’s presence. The authors encourage the criminal defense bar to continue to assert the originalist argument that the Fourth Amendment includes an “in-the-presence” limitation on warrantless misdemeanor arrests—an argument that has gained renewed relevance following the U.S. Supreme Court’s denial of certiorari in Gonzalez v. U.S.
“[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,” the authors write. “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.”
Read: “Shaping Warrantless Arrest Standard Post-Certiorari Denial”