Cite as: 532 U. S. 318 (2001)
Opinion of the Court
Treatise on the Criminal Law 20 (5th ed. 1847) ("[A constable] may for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender virtiute officii, without any warrant"); 1 W. Russell, Crimes and Misdemeanors 725 (7th ed. 1909) (officer "may arrest any person who in his presence commits a misdemeanor or breach of the peace").4
As will be seen later, the view of warrantless arrest authority as extending to at least "some misdemeanors" beyond breaches of the peace was undoubtedly informed by statutory provisions authorizing such arrests, but it reflected common law in the strict, judge-made sense as well, for such was the holding of at least one case reported before Hale had even become a judge but which, like Hale's own commentary, continued to be cited well after the ratification of the Fourth Amendment. In Holyday v. Oxenbridge, Cro. Car. 234, 79 Eng. Rep. 805 (1631), the Court of King's Bench held that even a private person (and thus a fortiori a peace officer 5)
needed no warrant to arrest a "common cheater" whom he discovered "cozen[ing] with false dice." The court expressly rejected the contention that warrantless arrests were improper "unless in felony," and said instead that "there was good cause [for] staying" the gambler and, more broadly, that "it is pro bono publico to stay such offenders." Id., at 805-806. In the edition nearest to the date of the Constitution's framing, Sergeant William Hawkins's widely read Treatise of the Pleas of the Crown generalized from Holyday that "from the reason of this case it seems to follow,
4 Cf. E. Trotter, Seventeenth Century Life in the Country Parish: With Special Reference to Local Government 88 (1919) (describing broad authority of local constables and concluding that, "[i]n short, the constable must apprehend, take charge of and present for trial all persons who broke the laws, written or unwritten, against the King's peace or against the statutes of the realm . . .").
5 See 2 Hawkins, ch. 13, § 1, at 129 ("[W]herever any [warrantless] arrest may be justified by a private person, in every such case à fortiori it may be justified by any [peace] officer").
331
Page: Index Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: October 4, 2007