Misdemeanors

Historically, under English common law, misdemeanors referred to all offenses except treason and felonies. Felonies were offenses requiring some forfeiture of a person's life and/or property. However, unlike felonies and treason, misdemeanor offenses could be further classified as either mala in se (wrong in themselves) or mala prohibita (wrong according to statute, but not wrong in themselves). Today, in the United States, misdemeanors remain less serious offenses than felonies, which usually require more than a year of incarceration in a prison or death, and more serious offenses than infractions, otherwise called “violations,” which are punishable by a small fine and carry no right to a trial or the benefit of counsel.

The differences among all three are largely a matter of the sanctions involved. For misdemeanors, the sanction may include incarceration in a jail for no longer than a year or some combination of the following: probation, suspended sentence, mandatory classes, community service, limitations on the possession of firearms, or a fine (usually not more than $5,000). Examples of misdemeanors include disorderly conduct, prostitution, simple assault, writing bad checks, criminal trespass, driving without a seatbelt, drunk driving, indecent exposure, possessing obscene or indecent materials, vagrancy, destruction of public notices, resisting arrest, and petty theft.

Misdemeanors may be classified as either gross misdemeanors (carrying a jail sentence of 30 days to 1 year) or petty misdemeanors (carrying a sentence of up to 30 days in jail). Additionally, most states further classify misdemeanors in keeping with the following federal classifications:

• Class A misdemeanor: up to a year incarcerated
• Class B misdemeanor: 30 days to 6 months incarcerated
• Class C misdemeanor: 5 days to 30 days incarcerated

For an arrest to occur immediately in a misdemeanor case, there is an in-presence requirement. This means that a law enforcement officer has to observe the offense or otherwise perceive it by any of his or her other four senses (touch, taste, smell, or hearing) before an arrest may be made (Garske v. United States, 1924). Otherwise, an arrest warrant would be required to proceed with a misdemeanor arrest. An exception to this would be some cases of domestic violence where state law might mandate arrest if a victim claims to have been victimized (misdemeanor offense) by a family member.

A misdemeanor arrest might also be the result of an officer acting on articulable or reasonable suspicion that an offense had been committed or was about to be committed based on a “totality of the circumstances” involved. Articulable or reasonable suspicion exists when, based on all of the facts of the circumstances, an experienced law enforcement officer would assume that the likelihood that an offense occurred, or was about to occur, was more than 50% or more than a mere “hunch” or slight suspicion, even though probable cause or actual evidence of the offense was not yet apparent. With such a likelihood, the officer is limited to investigating the situation with casual conversation, requesting to search the person or property, following the suspect and observing, or conducting a “stop and frisk.” A “stop” is a “seizure” for investigative purposes whereby a “reasonable man” (or person) would not feel free to leave under the circumstances (Florida v. Bostick, 1991), and a “frisk” is a search limited to the outer parts of a person's clothing for the purpose of finding deadly weapons (Terry v. Ohio, 1968). If such actions on the part of the officer result in evidence of a crime, then probable cause exists, and an arrest may follow.

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