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Victor D. Quilici
(847) 298-2566 victorq@ameritech.net |
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DEVENPECK et al. v. ALFORD
(Slip opinion dated 12/13/04; No. 03-710) |
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In the United States Supreme Court: certiorari to the United States Court of Appeals for the Ninth Circuit. |
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| The import of the United States Supreme Court’s decision here is that it rejected the 9th Circuit Appellate Court’s finding that the first determined reason State patrolmen had to arrest the defendant (based on his failure to come up with acceptable answers to his “wanna-be-a-cop” actions that made them believe he was impersonating a police officer, and obstructing their investigation) was not “closely related” to the revealed reason for his arrest—that is, because he recorded their conversation at the scene of the stop. | ||
| While many defense attorneys and their clients would embrace the “closely related offense” rule, stated by the 9th Circuit, law enforcement will find this Supreme Court ruling to be another feather in its hat, adding to the ever-growing police powers and “chipping away” of 4th Amendment protections. That is not to say that the Justices lack a sound rationale for this decision, when it is noted that implementing the “closely related offense” rationale could lead to corruption of the constitutionality of an arrest under a given set of known facts because it would “vary from place to place and from time to time, depending on whether the arresting officer states the reason for the detention and, if so, whether he correctly identifies a general class of offense for which probable cause exists. An arrest made by a knowledgeable veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not.” [citing Whren v. U.S., 517 U.S. 806, 815] | ||
| Several prior Supreme Court rulings re: decisions by the U.S. Court of Appeals for the District of Columbia provided the seeds for the objective standard of conduct embodied in this decision. | ||
| A reading of the full text of this case is a must for all, including those concerned with search and seizures that may turn up a firearm, considering malicious motivation may be behind a “stop” when it is justified only by a purported offense that is not closely related to , and not based on the same conduct as, the offense the arresting officer identifies as the basis for the arrest. Although this argument was rejected in Whren v. United States, 517 U.S. 806 (1996) as pointed out in this case, it certainly raises serious questions for 4th Amendment advocates. In any event, it's tough to argue with a U.S. Supreme Court 8-0 decision. | ||
| Factual background: | ||
| The driver of a vehicle equipped with “wig-wag” headlights, who had initially stopped to assist a motorist with a flat tire, and then drove away hurriedly when a police car approached, was subsequently stopped by a State patrol officer on suspicion that the defendant was impersonating a police officer. | ||
| During the stop, the patrolman noticed handcuffs and a hand-held police scanner in the vehicle, and defendant had been listening to a county sheriff’s office police frequency on a special radio. This scenario, and his failure to provide satisfactory answers to questioning , bolstered the patrolman’s suspicion that defendant was impersonating a police officer. When a back-up supervisor found the defendant taping their conversation he arrested him for a violation of the Washington State Privacy Act, and issued a ticket for the flashing headlights. The officers’ basis for the arrest (that he was imperson-ating an officer) was not disclosed to defendant and he was not charged with that offense. | ||
| Lower state and federal court decisions: | ||
| The State Court dismissed both charges, and defendant then filed a 1983 civil rights violation action against the patrolmen in Federal District Court with a state cause of action for unlawful arrest and imprisonment “resting upon the allegation that the [patrolmen] arrested him without probable cause in violation of the 4th and 14th Amendments.” The jury returned a unanimous verdict in favor of the patrolmen, and on appeal a divided Court of Appeals for the 9th Circuit reversed, finding “no evidence to support the jury’s verdict,” and that the offense which formed the basis for the arrest (the impersonation of an officer) was not “closely related” to the offense stated by the officer at the time of the arrest. “The majority rejected the [officers’] claim that probable cause existed to arrest the defendant for impersonating a law enforcement officer. 333 F. 3d at 975--977. | ||
| U.S. Supreme Court decision: | ||
| The Supreme Court granted certiorari. Addressing the Appellate Court’s finding on the issue of probable cause for the arrest, the justices found no basis in precedent or reason for the limitation in the Appellate Court’s finding that the probable cause inquiry is confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be “closely related” to the offense that the officer invoked. | ||
| The Court found that the “closely related offense” standard calls for subjective reasoning, and is inconsistent with its holding in Whren v United States, 517 U.S. 806, 812-813 (1996), where it held that “an arresting officer’s state of mind (except for the facts he knows) is irrelevant to the existence of probable cause.” The following are highlights of the opinion delivered by Justice Scalia (with some omissions not noted in the quoted text): | ||
| "This case presents the question whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not “closely related” to the offense stated by the arresting officer at the time of the arrest. | ||
| “. . . [The] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, ‘the fact that the officer does not have the state of mind that is hypothecated by the reasons which provide the legal justification for the officers’ action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’ Whren, supra, at 813 (quoting Scott v. United States, 436 U.S. 138 (1978)). | ||
| “. . . [T]he “closely related offense” rule is condemned by its perverse consequences. While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.3 Hence, the predictable consequence of the [closely related offense rule] is not, as [defendant] contends, that officers will cease making sham arrests on the hope that such arrests will later be validated, but rather, that officers will cease providing reasons for arrest. And even if this option were to be foreclosed by adoption of a statutory or constitutional requirement, officers would simply give every reason for which probable cause could conceivably exist. | ||
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“ The facts of this case exemplify the arbitrary consequences of a “closely
related offense” rule. Officer Haner’s initial stop of [defendant] was
motivated entirely by the suspicion that he was impersonating a police officer.
App. 106. Before pulling [defendant] over, Haner indicated by radio that this
was his concern; during the stop Haner asked [defendant] whether he was
actively employed in law enforcement and why his car had wig-wag headlights;
and when sergeant Devenpeck arrived, Haner told him why he thought [defendant]
was a “wannabe cop,” id. at 98. In addition, in the course of interrogating
[defendant], both officers became convinced that he was not answering their
questions truthfully and, with respect to the wig-wag headlights, that he was
affirmatively trying to mislead them. Only after these suspicions had developed
did Devenpeck discover the taping, place [defendant] under arrest, and offer
the Privacy Act as the reason. Because of the “closely related offense” rule,
Devenpeck’s actions render irrelevant both Haner’s developed suspicions that
[defendant] was impersonating a police officer and the officers’ shared belief
that [he] obstructed their investigation. If Haner, rather than Devenpeck, had
made the arrest, on the stated basis of his suspicions; if Devenpeck had not
abided the county’s policy against “stacking” charges; or if either officer had
made the arrest without stating the grounds, the outcome under the “closely
related offense” rule might well have been different. We have consistently
rejected a conception of the Fourth Amendment that would produce such haphazard
results. See Whren, 517 U.S. at 815.
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“ [Defendant] contended below that [the officers] lacked probable cause to
arrest him for obstructing a law enforcement officer or for impersonating a law
enforcement officer. Because the Court of Appeals held that those offenses were
legally irrelevant, it did not decide the question. We decline to engage in
this inquiry for the first time here. Accordingly, we reverse the judgment of
the Ninth Circuit and remand the case for further proceedings consistent with
this opinion.
“It is so ordered.” Note: The Chief Justice took no part in the decision of this case. 3 Even absent a requirement that an individual be informed of the reason for arrest when he is taken into custody, he will not be left to wonder for long” [P]ersons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause.” County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991). |
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