Cite as: 532 U. S. 318 (2001)
Opinion of the Court
committed in his presence . . ."); Carroll, 267 U. S., at 156- 157 ("The usual rule is that a police officer may arrest without warrant one . . . guilty of a misdemeanor if committed in his presence"); Bad Elk v. United States, 177 U. S. 529, 534, 536, n. 1 (1900) (noting common-law pedigree of state statute permitting warrantless arrest "[f]or a public offense committed or attempted in [officer's] presence"); Kurtz v. Moffitt, 115 U. S. 487, 499 (1885) (common-law presence requirement); cf. also Welsh v. Wisconsin, 466 U. S. 740, 756 (1984) (White, J., dissenting) (" '[A]uthority to arrest without a warrant in misdemeanor cases may be enlarged by statute' ").
Second, and again in contrast with Wilson, it is not the case here that "[e]arly American courts . . . embraced" an accepted common-law rule with anything approaching unanimity. Wilson v. Arkansas, 514 U. S., at 933. To be sure, Atwater has cited several 19th-century decisions that, at least at first glance, might seem to support her contention that "warrantless misdemeanor arrest was unlawful when not [for] a breach of the peace." Brief for Petitioners 17 (citing Pow v. Beckner, 3 Ind. 475, 478 (1852), Commonwealth v. Carey, 66 Mass. 246, 250 (1853), and Robison v. Miner, 68 Mich. 549, 556-559, 37 N. W. 21, 25 (1888)). But none is ultimately availing. Pow is fundamentally a "presence" case; it stands only for the proposition, not at issue here, see n. 11, supra, that a nonfelony arrest should be made while the offense is "in [the officer's] view and . . . still continuing" and not subsequently "upon vague information communicated to him." 3 Ind., at 478. The language Atwater attributes to Carey ("[E]ven if he were a constable, he had no power to arrest for any misdemeanor without a warrant, except to stay a breach of the peace, or to prevent the commission of such an offense") is taken from the reporter's summary of one of the party's arguments, not from the opinion of the court. While the court in Carey (through Chief Justice Shaw) said that "the old established rule of the common law" was that "a constable or other peace officer could not
341
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007