Court Reverses Suppression Due to Illegal Arrest; Scolds Government in the Process

US v. McNeill: A Baltimore police officer responded to a 911 call from a nearby convenience store. When he arrived, he found McNeill standing next to a woman and her children who were exiting a phone booth. The woman approached the officer, with McNeill in pursuit, and said that she wanted McNeill to leave her alone and that he had been "following her and messing with her." McNeill tried to interject his version of the situation into the discussion but was told by the officer to "chill out." McNeill decided that discretion was not called for and said to the woman "I'm going to get you, bitch, for this." The officer arrested McNeill for committing "assault by threat." While in custody with the Baltimore PD, McNeill, for reasons not hinted at in the opinion, confessed to participating in two bank robberies.

McNeill was charged with two counts of bank robbery under 18 USC 2113(a). He moved to suppress the statements as the fruit of an illegal arrest, claiming that he did not commit an offense in the presence of the officer who arrested him without a warrant. The district court granted that motion and the Government instigated an interlocutory appeal. As has been its recent trend, the Government failed to file the required certification for such an appeal under 18 USC 3731 until six months after the notice of appeal was filed (i.e., six months late) and it was filed in the wrong court, to boot.

McNeill moved the Fourth Circuit to dismiss the appeal due to the Government's failure to follow the requirements of section 3731. After noting the Government's repeated failures to comply with 3731 in recent years (see Hatfield & Dequasie) and a similar failure in another pending case, the court noted:

In this case, we are presented with the unfortunate fact that after our repeated warnings in 2004, the government continued to neglect the statutory requirements as we construed them. At the least, the government's failures are shameful lapses in professionalism. To his credit, however, the U.S Attorney himself stepped into this case to address the problem. He noted that the Assistant U.S. Attorneys involved in this case and in [the other pending case] were not personally aware of our 2004 decisions and that the requirements of those decisions were not reflected in the manuals used by Assistant U.S. Attorneys.

Emphasis added. Nonetheless, after restating once and for all that the 3731 certification must be filed along with the notice of appeal, the court applied the seven-factor test set forth in Hatfield and concluded that dismissal was not warranted in this case as a remedy for the Government's shortcomings. Thus the court, once again, gives lip service to the importance of the Government actually playing by the rules without actually imposing any negative consequences for failing to do so.

On the merits, McNeill fared no better. While the court initially questioned whether there was an "in the presence" requirement under the Fourth Amendment for warrantless misdemeanor arrests, it concluded that it need not resolve the issue in this case because McNeill did commit an offense in the officer's presence. To be fair, he did not commit "assault by threat," as it is not a crime in Maryland. However, noting that the arrest would be upheld if any offense was committed, regardless of the one given as the reason for arrest at the time, the court held that McNeill committed the Maryland offense of harassment (Md. Code Ann., Crim. Law 3-803). The officer therefore had probable cause to make the arrest and the later statements McNeill made regarding the bank robberies were thus not fruit of an illegal arrest.