[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-10578 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR JAVIER GRANDIA GONZALEZ,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cr-20314-BB-1 ____________________

Before WILSON, LUCK, and LAGOA, Circuit Judges. USCA11 Case: 23-10578 Document: 54-1 Date Filed: 07/19/2024 Page: 2 of 23

2 Opinion of the Court 23-10578

WILSON, Circuit Judge: This case requires us to determine whether the Fourth Amendment contains an in-the-presence requirement for a war- rantless misdemeanor arrest. While many of our sister circuits an- swer this question in the negative, most make their conclusion in passing. Further, both the U.S. Supreme Court and our own circuit have explicitly declined to broach the issue. However, this case affords us with an opportunity to clarify a historically murky area of the law. After review of common law, sister circuit, and Supreme Court precedent, we conclude that while an in-the-presence obser- vation may be sufficient for a warrantless misdemeanor arrest, it is not necessary under the Fourth Amendment. In other words, an in-the-presence requirement for warrantless misdemeanor arrests is consistent with the Fourth Amendment, but not necessarily de- manded as a prerequisite for constitutionality. We therefore affirm the district court’s judgment. I. Background Around 5:00 a.m., police dispatch sent Officers Sanchez and Exantus to a residential neighborhood after a 911 complainant re- ported a “white male casing the area and traveling westbound.” While Exantus went to speak with the complainant, Sanchez can- vassed the neighborhood. About a half block away from the com- plainant’s home, Officer Sanchez saw “a white male walking in the middle of the street” and told him to stop. This man was Defend- ant-Appellant Victor Grandia Gonzalez. USCA11 Case: 23-10578 Document: 54-1 Date Filed: 07/19/2024 Page: 3 of 23

23-10578 Opinion of the Court 3

Sanchez approached Gonzalez. He observed that Gonzalez wore dark clothing, carried a plastic bottle and a backpack, and had a shiny metal object in his pocket. Sanchez asked Gonzalez if he lived in the area, to which Gonzalez replied he lived out of his car at a restaurant eight to ten blocks away. When asked why he was walking down the street, Gonzalez responded that he thought he was allowed to do so. Sanchez thought Gonzalez looked sweaty and nervous, and told him to calm down so the officer could “ask [Gonzalez] some basic questions.” Meanwhile, Exantus spoke with the 911 caller at the com- plainant’s home. He told Exantus that while his wife walked their dog, she saw a “Latin male” with a backpack in black clothes look- ing into mailboxes, concealing himself between cars, 1 and coming out of a neighbors’ gate where the homeowners were away. The neighbors had prev