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Arrest reasonable when probable cause exists as to any charge

Scott Lewis

Here's a strange tale for law enforcement officers. However, the moral of the story, decided by the United States Supreme Court on Dec. 13, is that as long as a police officer has probable cause to arrest for any law violation, the arrest is legal, even when the original charge turns out to be invalid and totally unrelated. Devenpeck v. Alford, 2004 WL 2847718, case number 03-710.

Jerome "Tony" Alford was a "cop wannabe." His car had "wigwag" lights (alternatively flashing headlights) like a police vehicle, he had an amateur radio (with attached microphone) in his car broadcasting police communications, a police scanner, handcuffs, and he even had case law in his glove box.

One night Alford decided to act out his police fantasy. He spotted some stranded motorists, helped them jack up their car and gave them a flashlight. He took off when a real police vehicle approached. Washington State Trooper Joi Haner interviewed the motorists, who thought Alford was an officer, and pursued Alford. Haner also summoned his sergeant, Gerald Devenpeck, to the scene. Both officers questioned Alford about his "wigwag" lights and Alford misled both officers, stating that he had just installed the lights as part of a car security system. He also pretended not to know how to activate the lights.

Devenpeck noticed that Alford was tape recording their conversation. He ordered Alford out of the car and told Alford he was under arrest for making an illegal tape recording of a private conversation without the officers' consent, a violation of the Washington Privacy Act. Alford countered that he had a Washington appellate case in his glove compartment stating the recording was lawful. Devenpeck checked with a local prosecutor who felt that there was probable cause to arrest on a number of violations. Alford spent the night in jail. A state court judge later dismissed the Privacy Act criminal charge as well as a traffic citation for the flashing lights. Alford filed a Section 1983 action in federal court against the officers.

A jury found for the officers and Alford appealed. The U. S. Court of Appeals for the Ninth Circuit reversed. First, the court held that the officers did not have probable cause to arrest Alford for the tape recording and that they were not entitled to "qualified immunity" because the Washington case to which Alford referred the officers "clearly established" that recording a traffic stop was not a private conversation and, thus, not a violation of the Privacy Act. Second, the Ninth Circuit ruled that the crimes of impersonating an officer and obstruction (for which Alford might have been arrested) were not of "the same conduct for which the suspect was arrested." 333 F. 3d 972, 976 (9th Cir. 2003). (Emphasis in original.) Under Circuit precedent, the court held Alford's arrest unlawful.

The Supreme Court reversed the Ninth Circuit. Writing for a unanimous eight-justice court (Chief Justice William Rehnquist took no part), Justice Antonin Scalia began by noting that "probable cause…depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest."

However, Scalia wrote, probable cause is not limited to those known facts strictly involving the offense for which the suspect is apprehended or "closely related" offenses. Otherwise, "[a]n arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not." (Emphasis in original.) In a footnote, Scalia emphasized that probable cause does not turn on the nature of the offense (or those offenses "closely related") as recited by the officer at the time of the arrest, or at the time of booking.

It followed that the "[s]ubjective intent of the arresting officer, however it is determined…is simply no basis for invalidating an arrest." (Emphasis in original.) That is, either probable cause exists or it does not, regardless of the personal motivations, opinions, or concerns of the officer. Or, as the court put it, "[t]hose are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest."

Scalia next addressed what he termed the "perverse consequences" of the Ninth Circuit's "closely related" probable cause rule. Rather than discouraging "sham" arrests, the rule would result in either: officers providing no reason for their arrests, or "simply giv[ing] every reason for which probable cause could conceivably exist." In response to the contention that the accused must be immediately informed of the charges against him, Scalia wrote that this is good police practice but not constitutionally required. He pointed to Riverside v. Mc Laughlin, 500 U. S. 44 (1991), and its mandate that a suspect be brought before a magistrate for a probable cause determination within 48 hours of arrest.

The court then examined the facts of the Alford case as it related to its holding. Haner initially suspected that Alford was impersonating a police officer. Both Haner and Devenpeck thought Alford was obstructing their investigation regarding the "wigwag" lights. Devenpeck only charged Alford with the Privacy Act violation to avoid the State Patrol's policy against "stacking" charges. In other words, the facts initially known to the officers might have given rise to additional charges, and Devenpeck's motivation was not pretextual but (ironically) designed to avoid "piling on" charges. Yet, the Ninth Circuit's rule foreclosed consideration of additional charges in the probable cause analysis. Moreover, Scalia observed, the result might have been different if the officers had supplied no rationale for their arrest.

The court concluded by remanding the case to determine whether there was probable cause to arrest Alford for obstructing or impersonating an officer.

Wisconsin note: Alford should work little change in Wisconsin law, such as a disgreement by the Wisconsin courts on state constitutional grounds. For example, in State v. Baudhuin, 141 Wis. 2d 642 (1987), the court ruled that an officer's subjective intention in making an automobile stop on the lesser standard of "reasonable suspicion" is not controlling in analyzing the legitimacy of the stop. In Baudhin an officer made a stop of a slow moving vehicle to render assistance. It turned into a drunk driving arrest. The court viewed the fact that the officer initially had no intention of issuing a traffic citation as irrelevant to the arrest for OWI since the officer could have made a stop for impeding traffic.

In like manner, in a very recent decision awaiting probable publication, the Wisconsin Court of Appeals ruled in State v. Repenshak, 2004 WL 2608538, that an arrest is lawful if — objectively speaking — an officer has probable cause to arrest for an existing crime, notwithstanding that the officer mistakenly makes an arrest for a nonexistent crime. Repenshak cited with approval to Whren v. United States, 517 U. S. 806 (1996), which addressed the "probable cause" standard in the automobile stop context and adopted an objective "could have" versus "would have" standard in determining whether the stop was justified. (The Alford decision also cited Whren several times in support
of its reasoning.)

Scott Lewis, of the Racine city attorney's office, is a former police legal advisor and former public defender.

In addition to his J. D., he holds a Masters of Science in Criminal Justice degree from the University of Alabama, Tuscaloosa.

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