Devenpeck v. Alford: Wig-wag lights and civil rights (4th Amendment)
Devenpeck v. Alford, __ U.S. __, 2004 WL 2847718 (S. Ct. Dec. 13, 2004). Fourth Amendment; ultimate probable cause for arrest need not be "closely related" to actual reason for stop.
Players: Scalia writes for unanimous Court.
Facts: This is a goofy civil rights lawsuit. A car was broken down on the side of the road in Washington state. 2004 WL 2847718, *2. The civil rights plaintiff, Alford, pulled behind the car and activated "wig-wag" headlights (like those on a police car.). Id. Alford began helping the motorist, when a real state patrol car passed by. Id. Alford took off, and was stopped by the officer – originally on the suspicion that he was impersonating a cop. Id. During the stop, however, Alford taped-recorded the conversations with the officer. The officer then told Alford that he was under arrest for secret taping, in violation of the Washington Privacy Act. Alford was booked and ticketed for a Privacy Act violation, and given a ticket for wig-wag lights. At the time of the arrest, however, a Washington court of appeals decision had held that someone stopped by the police could tape the interrogation. Id. at *3. Alford brought a civil rights action under Section 1983, claiming that there was insufficient probable cause for the arrest. The Ninth Circuit ultimately held that the officers i) could not use probable cause for the Privacy Act violation, because taping a stop was legal, and ii) could not use probable cause for impersonating a police officer, because that offense was not "closely related" to the offense given to the officers when they arrested Alford (the Privacy Act charge).
Issue(s): "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 arrest." Id. at *2.
Held: "Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause . . . . That is to say, his 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 which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. at *5 (internal quotations and citations omitted).
Of Note: This is a bad, though not particularly surprising, decision in light of the Court’s previous opinion in Whren v. United States, 517 U.S. 806 (1995). The Court tries to makes the decision more palatable by pointing out that the police were encouraged by a D.A. to add the "impersonating an officer" charge during arrest, but they refused to "stack charges" against an arrestee. Id. at *3. Thus, it seems unfair to penalize the police when they refused to overcharge at the outset. Of course, the practical, real-world impact of the decision is that a prosecutor will be able to work with a cop, post hoc, and manufacture probable cause for offenses that were not even contemplated at the time of the arrest.
How to Use: NB: The officer has to know the facts supporting PC at the time of the arrest. Id. at *5. The decision does not say that an officer can learn and use new facts after a stop to show probable cause. Instead, there can be new theories of PC based on facts then known to the arresting officer. This is, albeit, a small distinction - but a critical one.
For Further Reading: Reread Thornton v. United States, 124 S. Ct. 2127 (2004). Thornton allows the search of a vehicle when the arrestee was a "recent occupant." When read together with Devenpeck, Thornton permits cops to change and make-up new reasons for an arrest after it is complete . . . and to search a car even when the suspect is not in it. Grim times for the Fourth Amendment.
Steven Kalar, Senior Litigator ND Cal
Players: Scalia writes for unanimous Court.
Facts: This is a goofy civil rights lawsuit. A car was broken down on the side of the road in Washington state. 2004 WL 2847718, *2. The civil rights plaintiff, Alford, pulled behind the car and activated "wig-wag" headlights (like those on a police car.). Id. Alford began helping the motorist, when a real state patrol car passed by. Id. Alford took off, and was stopped by the officer – originally on the suspicion that he was impersonating a cop. Id. During the stop, however, Alford taped-recorded the conversations with the officer. The officer then told Alford that he was under arrest for secret taping, in violation of the Washington Privacy Act. Alford was booked and ticketed for a Privacy Act violation, and given a ticket for wig-wag lights. At the time of the arrest, however, a Washington court of appeals decision had held that someone stopped by the police could tape the interrogation. Id. at *3. Alford brought a civil rights action under Section 1983, claiming that there was insufficient probable cause for the arrest. The Ninth Circuit ultimately held that the officers i) could not use probable cause for the Privacy Act violation, because taping a stop was legal, and ii) could not use probable cause for impersonating a police officer, because that offense was not "closely related" to the offense given to the officers when they arrested Alford (the Privacy Act charge).
Issue(s): "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 arrest." Id. at *2.
Held: "Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause . . . . That is to say, his 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 which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. at *5 (internal quotations and citations omitted).
Of Note: This is a bad, though not particularly surprising, decision in light of the Court’s previous opinion in Whren v. United States, 517 U.S. 806 (1995). The Court tries to makes the decision more palatable by pointing out that the police were encouraged by a D.A. to add the "impersonating an officer" charge during arrest, but they refused to "stack charges" against an arrestee. Id. at *3. Thus, it seems unfair to penalize the police when they refused to overcharge at the outset. Of course, the practical, real-world impact of the decision is that a prosecutor will be able to work with a cop, post hoc, and manufacture probable cause for offenses that were not even contemplated at the time of the arrest.
How to Use: NB: The officer has to know the facts supporting PC at the time of the arrest. Id. at *5. The decision does not say that an officer can learn and use new facts after a stop to show probable cause. Instead, there can be new theories of PC based on facts then known to the arresting officer. This is, albeit, a small distinction - but a critical one.
For Further Reading: Reread Thornton v. United States, 124 S. Ct. 2127 (2004). Thornton allows the search of a vehicle when the arrestee was a "recent occupant." When read together with Devenpeck, Thornton permits cops to change and make-up new reasons for an arrest after it is complete . . . and to search a car even when the suspect is not in it. Grim times for the Fourth Amendment.
Steven Kalar, Senior Litigator ND Cal
posted by Steve Kalar at 1/06/2005 01:48:00 PM
1 Comments:
The Devenpeck result seems sound only if the facts showing probable cause to believe another offense has been committed by the arrestee are likely to be presented to the magistrate or be included in the complaint. Then the magistrate can straighten everything out and determine the correct charge. But when the officer's knowledge of the alternative offense is unlikely to be mentioned until the officer is actually sued, then his arrest has no social value. In other words, there’s not even the possibility of a prosecution for the correct offense. In such a case, officer should not be able to use these facts to justify the arrest.
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