333 F.3d 972 (9th Cir. 2003), 01-35141, Alford v. Haner

Docket Nº:01-35141
Citation:333 F.3d 972
Party Name:Alford v. Haner
Case Date:June 23, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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333 F.3d 972 (9th Cir. 2003)

Jerome Anthony ALFORD, Plaintiff-Appellant,


Joi HANER, a Washington State Patrol Officer; Jane Doe Haner, his wife; Gerald Devenpeck, Sgt., Washington State Patrol; Jane Doe Devenpeck, his wife, Defendants-Appellees.

No. 01-35141.

United States Court of Appeals, Ninth Circuit

June 23, 2003


Argued and Submitted June 14, 2002.

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[Copyrighted Material Omitted]

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R. Stuart Phillips, Poulsbo, WA, for the plaintiff-appellant.

Christine O. Gregoire, Attorney General, Eric A. Mentzer, Assistant Attorney General, Olympia, WA, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-99-05586-RJB.

Before BROWNING, B. FLETCHER, and GOULD, Circuit Judges.

Opinion by Judge BROWNING; Dissent by Judge GOULD.


BROWNING, Circuit Judge:

Tony Alford spent the night in jail for tape recording a traffic stop. Since taping police officers during the performance of their public duties is not illegal under the Washington Privacy Act, the charge was dismissed by a state court.

Alford then filed suit under 42 U.S.C. § 1983 alleging that his arrest, incarceration and prosecution violated his Fourth Amendment right to be free from unreasonable seizure, and pursued state law claims for unlawful arrest and imprisonment. Defendants claimed they were entitled to qualified immunity and had probable cause for the arrest. The jury was instructed that state law clearly established at the time of the incident did not bar the type of recording for which Alford was arrested. Nevertheless, the jury found for the defendants and the district court denied Alford's motion for a new trial. Alford appeals. We reverse and remand.

I. Facts & Procedural History

While driving to his night job, Alford noticed a disabled car on the shoulder of a highway. The area was dark and deserted and he pulled over to offer assistance. After helping the motorists jack up their car and giving them a flashlight to use, he began walking back to his car.

Defendant Joi Haner, a Washington State Trooper, driving in the opposite direction, had observed the disabled vehicle and Alford's car pulling in behind it. Haner turned around at the first opportunity.

When Haner arrived, he saw Alford walking back toward his own car. Alford told Haner that the people in the car had a flat tire and that he had given them a needed flashlight. Alford then drove off and Haner went to check on the occupants of the stranded vehicle.

The motorists told Haner that they believed Alford was a police officer, in part because his car had "wig-wag" headlights (headlights that flash alternately). Because Haner was concerned that Alford

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was pretending to be a police officer, he called his supervisor, Sergeant Devenpeck, and drove off in pursuit of Alford. After pulling Alford over, Haner noticed that Alford's license plate was nearly unreadable because of a tinted license plate cover. Haner also saw that Alford had an amateur radio broadcasting the communications of the Kitsap County's Sheriff's Office, a microphone attached to the radio, a portable police scanner, and handcuffs.

Haner asked Alford about the wig-wag headlights and Alford responded that they were part of an alarm system that had been installed that day. Haner then ordered Alford to demonstrate the wig-wag lights, Alford pressed several buttons, but was unable to activate the lights. Haner noticed that Alford had not pushed a button near Alford's right knee, but did not ask Alford to do so. Later, another officer pushed the button and activated the wig-wag lights.

When Sergeant Devenpeck arrived he also asked Alford about the wig-wag lights. While talking with Alford, Devenpeck noticed a tape recorder on the passenger seat recording the traffic stop. Devenpeck told Haner to remove Alford from the car, and informed Alford that he was under arrest for making an illegal tape recording.

Alford told the officers that he had previously had a similar problem with the Kitsap County Sheriff and that he had a copy of a Washington Court of Appeals opinion in his glove compartment which held that the state Privacy Act does not apply to police officers performing official duties. The officers did not look at the case. Officer Devenpeck later testified that at the time of the arrest, his belief that he had probable cause to arrest Alford was based solely on his view that Alford had violated the Privacy Act.

When Alford was on his way to jail, Devenpeck called Deputy Prosecuting Attorney Mark Lindquist. Devenpeck related what had occurred but did not tell Lindquist about the case Alford had cited. Lindquist advised Devenpeck that there was "clearly probable cause" for arrest, but at trial Lindquist testified that this determination was based primarily on conduct other than the tape recording. Officer Haner also later admitted that the case Alford cited had previously been mentioned in a law enforcement digest that Haner generally read.

Alford was jailed for the night on the charge of making an illegal audio recording of a private conversation without knowledge or consent. His car was towed and impounded. A state court judge later dismissed the charge.

Alford filed a complaint in federal district court against both the officers and the Washington State Patrol. The Patrol was later dismissed. Alford presented two claims to the jury, a § 1983 claim and a state law claim for unlawful arrest and imprisonment. The jury found for the defendants. The district court denied Alford's motion for a new trial.

II. Motion for a New Trial

We review a district court's ruling on a motion for a new trial for abuse of discretion. U.S. v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999). We will reverse the denial of a new trial where, as here, there is no evidence to support the jury's verdict. Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1189-90 (9th Cir. 2002); see also De Saracho v. Custom Food Mach. Inc., 206 F.3d 874, 880 (9th Cir. 2000).

The elements of a section 1983 action are: (1) that "the conduct complained of was committed by a person acting under color of state law;" and (2) that the "conduct deprived a person of rights, privileges,

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or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). 1 There is no dispute about the first element: the defendants acted under color of state law.

As to the second element, Alford argues that he was deprived of his constitutional right to be free from unreasonable seizure. The Fourth Amendment prohibits arrests without probable cause. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Probable cause exists when an officer has "a reasonable belief ... that a crime has been, is being, or is about to be committed." Hopkins v. City of Sierra Vista, 931 F.2d 524, 527 (9th Cir. 1991) (internal quotation marks omitted). Tape recording officers conducting a traffic stop is not a crime in Washington. See Wash. Rev.Code§ 9.73.030(1)(b) (prohibiting recording of private conversations); State v. Flora, 68 Wash.App. 802, 845 P.2d 1355 (1992) (finding that recording an arrest made by public officers performing functions on public thoroughfares did not violate Washington law because the arrest did not constitute a private conversation). Here, the jury was instructed that an arrest made without probable cause was unreasonable and that, under clearly established law, the conduct for which Alford was arrested was not a violation of the Privacy Act.

Since they did not have probable cause to arrest Alford for violating the Privacy Act, defendants now claim on appeal that they had probable cause to arrest Alford for offenses other than tape recording and therefore, Alford's rights were not violated. The defendants cite a 1973 Fifth Circuit case for the proposition that an arrest may be valid, even if there was not probable cause to arrest for the particular crime cited, if there was probable cause to arrest a person for some criminal offense. United States v. Saunders, 476 F.2d 5, 6-7 (5th Cir. 1973). Whatever the rule may have been in that Circuit, this is not the test applied in the Ninth Circuit. In this Circuit, "[p]robable cause may still exist for a closely related offense, even if that offense was not invoked by the arresting officer, as long as it involves the same conduct for which the suspect was arrested." Gasho v. United States, 39 F.3d 1420, 1428 n. 6 (9th Cir. 1994) (emphasis added), cert. denied sub. nom., Ball v. Gasho, 515 U.S. 1144, 115 S.Ct. 2582, 132 L.Ed.2d 831 (1995).

The conduct underlying the crimes suggested by the defendants is unrelated to Alford's tape recording. Any impersonation charge would be based on Alford's use of wig-wag headlights. An obstruction charge would be based on Alford's evasion in allegedly not turning on the wig-wag lights assuming he knew how to do so. These offenses are not closely related to the crime for which defendants arrested Alford, nor was the conduct required for impersonation and obstruction similar to the conduct for which Alford was arrested: tape recording a traffic stop. Since the defendants did not have probable cause to arrest Alford for a violation of the Washington Privacy Act, probable cause to arrest for other unrelated offenses, if present,

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does not cure the lack of probable cause here. Gasho, 39 F.3d at 1428 n. 6.

The defendants argue that a...

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