Don't Do Any Part Of The Crime In Front Of The Man

UNITED STATES v. MCNEILL, USCA-4 Nos. 06-4444, 06-4449, 2007 U.S.App. LEXIS 10140, on appeal from USDC-MDD, before USCJs Widener, Niemeyer, Motz, opinion by Niemeyer, filed 02 May 2007.

LONG STORY SHORT: Fourth Amendment probable cause justifying a warrantless arrest for a misdemeanor committed "in the officer's presence" does not require all elements of the offense to occur in front of the officer. Binding in MD, NC, SC, VA, WV.

FACTS: Girlfriend got a Maryland state court to issue a protective order against Defendant. A few hours later, Girlfriend was at a convenience store in Baltimore and called 911 to ask for police protection from Defendant. Officer arrived at the store to see Defendant standing next to Girlfriend and her children. Officer separated them and tried to talk to Girlfriend first, who said Defendant was following her and messing with her. Defendant kept interfering, to the point that Officer had to instruct Defendant to "chill." When Girlfriend told Officer about the protective order, Defendant heard her and said "I'm going to get you, bitch, for this." Officer arrested Defendant for what Officer called "assault by threat," but there is no such offense under Maryland law, although Defendant's conduct did amount to the misdemeanor of harassment. Officer checked with dispatch to confirm the protective order, but dispatch could not find it; neither knew that the protective order was so recent that it was not in the system yet. Officer took Defendant in, where Defendant made statements that incriminated himself as to two recent bank robberies.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland on two counts of bank robbery. Defendant moved to suppress his statements as the fruit of an unreasonable arrest in violation of the Fourth Amendment, on grounds that Officer had no probable cause to believe Defendant had committed harassment in Officer's presence. The trial court ruled that Defendant had committed no offense in Officer's presence, rendering Defendant's arrest illegal. Everything the police obtained as a result of the arrest, including Defendant's statements, were fruits of the poisonous tree. MOTION TO SUPPRESS GRANTED. The United States took an interlocutory appeal to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Police may generally arrest anyone for even very minor criminal offenses without violating the Fourth Amendment, so long as probable cause exists. It is long settled that officers may arrest for felonies not committed in the officer's presence, even without a warrant, but the Supreme Court has never ruled on whether the Fourth Amendment forbids warrantless arrests for misdemeanors not committed in the officer's presence. The Fourth Circuit's own precedent was not entirely clear either. However, that question proved to be moot, because upon closer inspection, Officer did indeed have probable cause to believe that Defendant committed a crime in his presence.

There is no such offense as "assault by threat" in Maryland, but so long as some actual crime occurred, Defendant gave Officer the power to arrest him. Maryland defines the misdemeanor offense of harassment, in pertinent part, as (1) following someone else around in a public place (2) with the intent to harass, alarm, or annoy the other, (3) after receiving a reasonable warning or request to stop by or on behalf of the other, and (4) without a legal purpose. Here, Girlfriend got a protective order, called 911, and complained to Officer that Defendant was harassing her, whereupon Defendant grew agitated and threatened Girlfriend. All of this gave Officer probable cause to believe that Defendant was continuing to commit harassment in front of him, even if he had begun his course of conduct some time before. Officer therefore had the power to arrest Defendant without offending any in-the-presence requirement or the Fourth Amendment. SUPPRESSION REVERSED.

EDITORIAL: If this relationship took its typical course, I'm sure Girlfriend has seen the error of her ways, and gone to see this turkey every day in the federal detention center, with as many of her kids in tow as the Bureau of Prisons will allow. When he catches 20 years for bank robbery, she'll probably come to her senses. But I digress.

Know your crimes, folks. Try not to threaten people with nonexistent crimes; such is considered--to invoke the ultimate British term of reproach--bad form. If nothing else, since the officer had to tell the guy to "chill" and stop interfering with his investigation, you could probably hook him up for obstruction. In North Carolina, we have about 30 different kinds of assault and threat, anything from ordinary common-law assault ("assault assault") to assault with a deadly weapon with intent to kill inflicting serious injury (AWDWWITKISI or "the alphabet crime"), with all sorts of specific situations like assault on a sports official and cyberstalking. I wish we'd do like Florida and just have assault, aggravated assault, battery, and aggravated battery. Anyway, I predict that if this issue ever does come up before SCOTUS, they'll find no in-the-presence requirement for misdemeanors.