Criminal
Law
Arrest reasonable
when probable
cause exists as to any charge
By
Scott Lewis
Jan.
12, 2005
 |
| 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.
