543 U.S. 146 (2004), 03-710, Devenpeck v. Alford

Docket Nº:No. 03-710
Citation:543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537, 73 U.S.L.W. 4038
Party Name:Gerald Devenpeck Et Al., Petitioners v. Jerome Anthony Alford
Case Date:December 13, 2004
Court:United States Supreme Court

Page 146

543 U.S. 146 (2004)

125 S.Ct. 588, 160 L.Ed.2d 537, 73 U.S.L.W. 4038

Gerald Devenpeck Et Al., Petitioners


Jerome Anthony Alford

No. 03-710

United States Supreme Court

December 13, 2004

Argued November 8, 2004.

[125 S.Ct. 589] Syllabus [*]


Believing that respondent was impersonating a police officer, petitioner Haner, [125 S.Ct. 590] a Washington State Patrol officer, pursued and pulled over respondent's vehicle. While questioning respondent at the scene, petitioner Devenpeck, Haner's supervisor, discovered that respondent was taping their conversation and arrested him for violating the State's Privacy Act. The state trial court subsequently dismissed the charge. Respondent then filed this suit in federal court, claiming, among other things, that his arrest violated the Fourth and Fourteenth Amendments. The District Court denied petitioners qualified immunity, and the case went to trial. The jury was instructed, inter alia, that respondent had to establish lack of probable cause to arrest, and that taping police at a traffic stop was not a crime in Washington. The jury found for petitioners. The Ninth Circuit reversed, based in part on its conclusion that petitioners could not have had probable cause to arrest. It rejected petitioners' claim that there was probable cause to arrest for impersonating and for obstructing a law enforcement officer, because those offenses were not "closely related" to the offense invoked by Devenpeck at the time of arrest.


1. A warrantless arrest by a law officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. The Ninth Circuit's additional limitation – that the offense establishing probable cause must be "closely related" to, and based on the same conduct as, the offense the arresting officer identifies at the time of arrest – is inconsistent with this Court's precedent, which holds that an arresting officer's state of mind (except for facts that he knows) is irrelevant to probable cause, see Whren v. United states, 517 U.S. 806, 812-815, 116 S.Ct. 1769, 135 L.Ed.2d 89. The "closely related offense" rule is also condemned by its perverse consequences: it will not eliminate sham arrests but will cause officers to cease providing reasons for arrest, or to cite every class of offense for which probable cause could conceivably exist. Pp. 593-595.

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2. This Court will not decide in the first instance whether petitioners lacked probable cause to arrest respondent for either obstructing or impersonating an officer because the Ninth Circuit, having found those offenses legally irrelevant, did not decide that question. Pp. 595.

333 F. 3d 972, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which all other Members joined, except REHNQUIST, C. J., who took no part in the decision of the case.


James B. Comey for the United States as amicus curiae, by special leave of the Court, for petitioners.

Christine O. Gregoire, Attorney General, Robert K. Costello, Deputy Attorney General, Maureen A. Hart, William Berggren Collins Sr., Assistant Attorneys General, Michael P. Lynch, Senior Counsel, Counsel of Record, Eric A. Mentzer, Assistant Attorney General, Olympia, WA, for petitioners.

R. Stuart Phillips, Washington, DC, for respondent.

Christine O. Gregoire, Attorney General, Robert K. Costello, Deputy Attorney General, [125 S.Ct. 591] Maureen A. Hart, Senior Assistant Attorney General, Michael P. Lynch, Counsel of Record, Senior Counsel, Eric A. Mentzer, Assistant Attorney General, Olympia, WA, for petitioners.



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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.



On the night of November 22, 1997, a disabled automobile and its passengers were stranded on the shoulder of State Route 16, a divided highway, in Pierce County, Washington. Alford v. Haner, 333 F. 3d 972, 974 (CA9 2003); App. 94, 98. Respondent Jerome Alford pulled his car off the road behind the disabled vehicle, activating his "wig-wag" headlights (which flash the left and right lights alternately). As he pulled off the road, Officer Joi Haner of the Washington State Patrol, one of the two petitioners here, passed the disabled car from the opposite direction. 333 F. 3d, at 974. He turned around to check on the motorists at the first opportunity, and when he arrived, respondent, who had begun helping the motorists change a flat tire, hurried back to his car and drove away. Ibid. The stranded motorists asked Haner if respondent was a "cop"; they said that respondent's statements, and his flashing, wig-wag headlights, had given them that impression. Ibid.; App. 96. They also informed Haner that as respondent hurried off he left his flashlight behind. Id., at 97.

On the basis of this information, Haner radioed his supervisor, Sergeant Gerald Devenpeck, the other petitioner here, that he was concerned respondent was an "impersonator"

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or "wannabe cop." Id., at 97-98. He pursued respondent's vehicle and pulled it over. 333 F. 3d, at 975. Through the passenger-side window, Haner observed that respondent was listening to the Kitsap County Sheriff’s Office police frequency on a special radio, and that handcuffs and a hand-held police scanner were in the car. Ibid. These facts bolstered Haner's suspicion that respondent was impersonating a police officer. App. 106, 107. Haner thought, moreover, that respondent seemed untruthful and evasive: He told Haner that he had worked previously for the "State Patrol," but under further questioning, claimed instead to have worked in law enforcement in Texas and at a shipyard. Ibid. He claimed that his flashing headlights were part of a recently installed car-alarm system, and acted as though he was unable to trigger the system; but during these feigned efforts Haner noticed that respondent avoided pushing a button near his knee, which Haner suspected (correctly) to be the switch for the lights. 333 F. 3d, at 975; App. 108.

Sergeant Devenpeck arrived on the scene a short time later. After Haner informed Devenpeck of the basis for his belief that respondent had been impersonating a police officer, id., at 110, Devenpeck approached respondent's vehicle and inquired about the wig-wag headlights, 333 F. 3d, at 975. As before, respondent said that the headlights were part of his alarm system and that he did not know how to activate them. App. 52, 138-139. Like Haner, Devenpeck was skeptical of respondent's answers. In the course of his questioning, Devenpeck noticed a tape recorder on the passenger seat of respondent's car, with the play and record buttons [125 S.Ct. 592] depressed. 333 F. 3d, at 975. He ordered Haner to remove respondent from the car, played the recorded tape, and found that respondent had been recording his conversations with the officers. Devenpeck informed respondent that he was under arrest for a violation of the Washington Privacy Act, Wash. Rev. Code §9.73.030 (1994). 333 F. 3d, at 975; App. 144-145. Respondent protested that a state court-of-appeals

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decision, a copy of which he claimed was in his glove compartment, permitted him to record roadside conversations with police officers. 333 F. 3d, at 975; App. 42, 67-68. Devenpeck returned to his car, reviewed the language of the Privacy Act, and attempted unsuccessfully to reach a prosecutor to confirm that the arrest was lawful. Id., at 151-154. Believing that the text of the Privacy Act confirmed that respondent's recording was unlawful,1 he directed Officer Haner to take respondent to jail. Id., at 154.

A short time later, Devenpeck reached by phone Mark Lindquist, a deputy county prosecutor, to whom he recounted the events leading to respondent's arrest. 333 F. 3d, at 975. The two discussed a series of possible criminal offenses, including violation of the Privacy Act, impersonating a police officer, and making a false representation to an officer. App. 177-178. Lindquist advised that there was "clearly probable cause," id., at 179, and suggested that respondent also be charged with "obstructing a public servant" "based on the runaround [he] gave [Devenpeck]," id., at 157. Devenpeck rejected this suggestion, explaining that the State Patrol does not, as a matter of policy, "stack charges" against an arrestee. Id., at 157-158.

At booking, Haner charged respondent with violating the State Privacy Act, id., at 32-33, and issued a ticket to respondent for his flashing headlights under Wash. Rev. Code §46.37.280(3) (1994), App. 24-25. Under state...

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