Common Law, Common Sense? How Federal Circuit Courts Have Misapplied the Fourth Amendment and Why Officers Must Be Present to Make a Warrantless Arrest for a Misdemeanor Offense
Criminal Law Bulletin Volume 53, Issue 4, 2017
48 Pages Posted: 29 Jan 2017 Last revised: 3 Oct 2017
Date Written: 2016
This article fills a gap in legal scholarship, arguing that officers must be in the presence of a misdemeanor offense in order to conduct a full custodial arrest of the misdemeanant without a warrant. It is the first article to speak on the topic in over twenty years and is the first to apply the two-pronged test set forth by the Supreme Court in Wyoming v. Houghton to the issue of warrantless arrests for misdemeanor offenses occurring outside an officer’s presence. Additionally, it is the first article to collect the seminal case from each of the seven federal circuits that have ruled on the issue, grouping them based on their legal reasoning. Furthermore, the article contains a fifty state survey detailing each state’s criminal statute regarding warrantless arrests for misdemeanor offenses. The survey is grouped into two categories, alphabetically listing states that require officer presence to justify a warrantless arrest for a misdemeanor offense, and alphabetically listing states that do not.
Keywords: Fourth Amendment, constitution, arrest, without warrant, warrantless, misdemeanor, felony, common law, presence requirement, presence, requirement, privacy interests, privacy, right to privacy, state statutes
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