Petitioners Brief — Devenpeck v. Alford
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2 FILED
JUN 17 2004
NO. 03-710 OFFICE OF THE CLERK
IN THE SUPREME COURT OF
THE UNITED STATES
GERALD DEVENPECK, A WASHINGTON STATE PATROL
OFFICER, JOI HANER, A WASHINGTON STATE PATROL
OFFICER, AND THEIR MARITAL COMMUNITIES,
Petitioners,
v
JEROME ANTHONY ALFORD,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE PETITIONERS
CHRISTINE O. GREGOIRE
Attorney General
Robert K. Costello
Deputy Attorney General
Maureen A. Hart
Senior Assistant Attorney General
Michael P. Lynch*
Senior Counsel
Eric A. Mentzer
Assistant Attorney General
629 Woodland Square Loop SE
P.O. Box 40126
Olympia, WA 98504-0126
360-459-6600
*Counsel of Record
i
Be - QUESTIONS PRESENTED
aa ; Under the Fourth Amendment’s “objective
3. oe reasonableness” test, an arrest is deemed
te Gm “reasonable” if, based on an objective assessment of
. | the facts and circumstances at the time of arrest,
Bo Sal a : there is probable cause to believe that a violation of
ae ke | law has occurred.
1. Does an arrest violate the Fourth Amendment
Bes: : when a police officer has probable cause to
see Be Ee | make an arrest for one offense, if that offense
ter AL | is not closely related to the offense articulated
oe st MBs by the officer at the time of the arrest?
JJ eee Se For purposes of qualified immunity, was the
FFV 8 law clearly established when there was a split
„„ in the circuits regarding the application of the
e “closely related offense doctrine,” the Ninth
We 3 es : Circuit had no controlling authority applying
. | the doctrine and Washington state law did not
e apply the doctrine?
ii ili
TABLE OF CONTENTS 2. The “Closely Related Offense
Doctrine” Irreconcilably Conflicts
. ecccervsstsnittntcntdinciquemsmiuiieasibaaiiiaiaas 1 With The Court’s Precedent And
— ET 1 Improperly Limits The Inquiry Into
. Q 20
CONSTITUTIONAL AND STATUTORY ‘
PROVISIONS INVOLVED . e 1 3. The “Closely Related Offense
Doctrine” Is III-Suited To Achieve Its
̃— 2 Proffered Objectives And Produces
„8 Ä 3 Illogical And Unjust Results 21
1. Events Establishing Probable Cause 4. The Closely Related Offense Doctrine
To Arrest Mr. Alford For The Offense Intrudes On The Proper Exercise Of
Of Impersonating An Officer 3 Prosecutorial Discretion . 24
2. Events Establishing Probable Cause B. Even If The “Closely Related Offense
To Arrest Mr. Alford For The Offense Doctrine” Is Valid, Petitioners Are
Of Obstructing A Law Enforcement Entitled To Qualified Immunity Because
—T—T—T———TTTT 5 The Doctrine Was Not Clearly
3. Events Leading To Mr. Alford’s Arrest rr... Leen ee ore 26
For The Offense Of Violating 1. Qualified Immunity Applies Absent
Washington's Privacy Act . . . . . . . 5 7 Violation of Clearly Established Law ...... 26
B. Procedural History. . . . . . . . . . . . .. 7 2. The “Closely Related Offense
Doctrine” Was Not Clearly
ere * Established Law. 28
r... 16 a. The Ninth Circuit failed to
A. When Properly Assessed Under The consider all relevant precedent........... 28
“Objective Reasonableness” Standard, ae
Mr. Alford’s Arrest Was Lawful ..................... 16 b. The Ninth Circuit has net
consistently applied the “closely
1. The Court Consistently Applies An related offense doctrine” ..................... 32
r 0 . . 35
Assessing The Existence Of Probable
nnr... 16
iv
TABLE OF AUTHORITIES
Cases
Alabama v. White,
, pe renener tS ome ar rr 16
Alaska v. Kendail,
e x e ean 29
Alford v. Haner,
1 1. 28, 31, 33
Anderson v. Creighton,
eee e eee 27
Arkansas v. Sullivan,
| == eee 19
Atlantic Coast Line R.R. Co. v. Brotherhood of
Locomotive Engineers,
RSS 2 ome 30
Beck v. Ohio, :
| eee aaes 2, 16, 20, 22
Bingham v. City of Manhattan Beach,
. ee 33
Bingham v. City of Manhattan Beach,
341 F.3d 939 (9th Cir. 2003) eee 33, 34
Bordenkircher v. Hayes,
I .. 25
Burgess v. Lowery,
201 F.3d 942 (7th Cir. 2000) . 27
City of Seattle v. Cadigan,
55 Wash. App. 30, 776 P.2d 727, review
denied, 113 Wash.2d 1025 (1989) 28
V
County of Riverside v. McLaughlin,
I .. 25
Davis v. Scherer, ;
I 31
Elder v. Holloway,
SU — 27
Florida v. Cote,
547 So.2d 993 (Fla. App. 4 Dist., 1989)................ 29
Florida v. Royer,
Dr 17, 21
Gasho v. United States,
39 F.3d 1420 (9th Cir. 1994)
cert. denied sub nom.
Ball v. Gasho, 515 U.S. 1144 (1995)... 11, 13, 32, 34
Golden v. Commonwealth of Virginia,
30 Va. App. 618, 519 S.E.2d 378 (Va. App.
Ec 29
Graham v. Connor,
rr 18
Harlow v. Fitzgerald,
re 26
Heck v. Humphrey,
| TR a aT RICE. EN 30
Illinois v. Gates,
e e 16
Imbler v. Pachtman,
r is 25
In re Justin K,
98 Cal. App. 4th 695 (200 2))))) eee ee 29
vi
Lee v. Ferraro,
284 F.3d 1188 (11th Cir. 2002) . 31
Lockyer v. Andrade,
Z 30
Malladay v. Crunk, ö
902 F. 2d 10 (8th Cir. 1990)....... ͤ——ü— —ÿ—ñũſn 30
Malley v. Briggs,
er eee 26
People v. Kincy,
435 N. E. 2d 831 (Ill. App. 2 Dist., 1982) .. 29
People v. Rodriguez,
53 Cal. App. 4th 1250 (1997) 29
Peters v. New York, decided with
Sibron v. New York,
I . 17
Procunier v. Navarette,
r q eeccel 31
Richardson v. Selsky,
reer. 27
Saucier v. Katz,
e RES aree rss eernoa anes 2, 26
Scheuer v. Rhodes,
I a 31
Scott v. United States,
I, alll 17-19
Tennessee v. Duer,
616 S.W.2d 614 (Tenn. Crim. App. 1981)............ 29
United States v. Atkinson,
450 F. ad 835 (Sth Cir. 1971])..........ccccccccccccsccccsecsss 24
Vii
United States v. Bookhardt,
277 F.3d 558 (D.C. Cir. 2002) . . . . . 33
United States v. Di Re,
e 29
United States v. Putzer,
284 F.3d 1043 (9th Cir. 2002) . . . .. 33
United States v. Robinson,
e . 16, 17-19
United States v. Saunders,
476 F.2d 5 (5th Cir. 1973) . . . . 13, 31
United States v. Villamonte- Marquez,
er 18
Vance v. Nunnery,
137 F.3d 270 (5th Cir. 1998) . . . . . . ... 31 ——_—_
Washington v. Flora,
68 Wash. App. 802, 845 P.2d 1355 (1992)......... 7,8
Washington v. Greene,
75 Wash.2d 519, 451 P.2d 926 (1969) ............ 28-29
Washington v. Huff,
64 Wash. App. 641, 826 P.2d 698, review
denied, 119 Wash.2d 1007 (1992)... . ... 13, 28
Washington v. Stebbins,
47 Wash. App. 482, 735 P.2d 1353, review
denied, 108 Wash.2d 1026 (1987)
Washington v. Vangen,
72 Wash. 2d 548, 433 P.2d 691 (1967) .................
Wayte v. United States,
| REET cee Rone Kanan Seer Fee
Wells v. Bonner,
45 F.3d 90 (6th Cir. 1998) .. . . eee,
Vili
Whren v. United States,
— 8 18. 19
Wilson v. Layne,
528 U.S. GOS (1999). oe 27, 31, 34
Statutes
. —T—„— — 8 32
3 ’——— . 32
. . 32
1 — . 1
1 — ͤ ä! — 8 30
T 30
Del. Code. Ann., Title 11, § 1905 . . 29
II . 29
R. I. Stat. Gen. Laws Of R. I. Ann., 1956, Title 12.
Crim. Proc., Chapter 7. Arrest 29
Wash. Rev. Code § 9.73.0300 . . 1. 6
Wash. Rev. Code § 9A. 60.040 .. 6
Wash. Rev. Code § 9A. 60.040(3) . . . . . . . . 2
Wash. Rev. Code § 9A. 76.020 . . 2, 6
Wash. Rev. Code § 46.37. 2803) . . . .. 7
Other Authorities
1 Wayne R. La Fave, Crim. Proc., Ihe Decision
to Charge, § 1.3(8) (3d ed. 199) . .... 24
Wayne R. La Fave & Jerald H. Israel, 2 Crim.
Proc., § 3.1(d) (2d ed. 2004). . . . . 23
Warner, The Uniform Arrest Act, 28 Va. Law
EEE SEA eee Senn 29
ix
Constitutional Provisions
U.S. Const. amend. IV
1-2, 13, 16-18, 20-21, 26-27, 29
This page intentionally left blank.
1
OPINIONS BELOW
The opinion of the Court of Appeals is reported
at Alford v. Haner, 333 F.3d 972 (2003). Pet. la-22a.
The court’s order denying the petition for rehearing
and for rehearing en banc is unpublished. Pet. 23a.
The order of the United States District Court for the
Western District of Washington granting in part and
denying in part Defendants’ Motion for Summary
Judgment is also unpublished. Pet. 28a-41a.
JURISDICTION
The judgment of the Ninth Circuit was
entered on June 23, 2003. Pet. la-22a. On August 8,
2003, the Court of Appeals issued an order denying a
timely petition for rehearing and petition for
rehearing en banc. Pet. 23a. The jurisdiction of the
Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth Amendment of the United States
Constitution provides:
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.”
Other relevant statutes are set out in the
Petition. These include Washington’s Privacy Act
prohibition against recording a private conversation,
Wash. Rev. Code § 9.73.030; (Pet. 66a-68a);
2
Washington’s prohibition against impersonating a
law enforcement’ officer, Wash. Rev. Code
§ 9A.60.040(3); (Pet. 68a-69a); and Washington's
prohibition against obstructing a law enforcement
officer, Wash. Rev. Code § 9A.76.020 (Pet. 69a).
STATEMENT
The Court consistently applies the “objective
reasonableness’ test in evaluating whether an arrest
is supported by probable cause. Under this test,
probable cause exists if “at the moment of arrest” the
facts and circumstances within the knowledge of the
officer would warrant a reasonable officer to believe
that the suspect had committed or was committing
an offense (the “objective reasonableness” test). Beck
v. Ohio, 379 U.S. 89, 91 (1964). The principal
question in this case is whether the “objective
reasonableness” test is inapplicable where there is
probable cause to arrest, but the arresting officer
articulates an offense for which probable cause does
not exist, and the articulated offense is not closely
related to an offense for which probable cause does
exist.
The Ninth Circuit concluded that the
“objective reasonableness” test was inapplicable
under these circumstances, applying instead the
“closely related offense doctrine”. Only if the Court
determines that the Ninth Circuit was correct, need
it reach the secondary question of whether the
Petitioners are entitled to qualified immunity.
Saucier v. Katz, 533 U.S. 194 (2001).
3
A. Factual Background
1. Events Establishing Probable
Cause To Arrest Mr. Alford For The
Offense Of Impersonating An
Officer
On November 22, 1997, Mr. Alford pulled
behind a disabled vehicle on a dark and rural section
of State Route 16, utilizing wig-wag headlights that
he had installed on his vehicle. J.A. 94-99. Wig-wag
headlights flash on and off in alternating fashion,
and are customary on law enforcement vehicles.
Washington State Patrol Trooper Joi Haner was
driving the opposite direction and observed
Mr. Alford’s car pull in behind the disabled car.
Trooper Haner wanted to see if the motorists needed
assistance, so he turned around at his first
opportunity and came back, pulling in behind
Mr. Alford’s vehicle. J.A. 94-95. As Trooper Haner
approached the disabled vehicle, Mr. Alford left in a
hurry. J.A. 95. Trooper Haner found Mr. Alford’s
urgency to leave the area unusual. In the Trooper's
experience, a person who stops to help a disabled car
normally will stay to talk with the trooper as the
trooper contacts the persons in the disabled vehicle.
J.A. 95.
Upon contacting the two motorists at the
disabled vehicle, one inquired of Trooper Haner
whether Mr. Alford was a cop. J.A. 96-97. Now
curious, Trooper Haner inquired why they had
formed that belief and “they told [Trooper Haner]
that [Mr. Alford] had wig-wag headlights, and they
were under the impression that [Mr. Alford] was a
police officer’. J.A. 96. The stranded motorists
4
indicated to Trooper Haner, “Yeah, we thought he
was a cop“. Id.
Trooper Haner knew that persons successfully
pretending to be law enforcement officers place
themselves in a position to take advantage of
vulnerable people. J.A. 100. Concerned that
Mr. Alford was pretending to be a police officer,
Trooper Haner contacted his supervisor, Sergeant
Gerald Devenpeck. After making sure the two
motorists were all right, Trooper Haner then
pursued and stopped Mr. Alford. J.A. 97, 101. As
Trooper Haner approached Mr. Alford’s car, he
noticed that the license plate had a tinted cover
making it unreadable. J.A. 102. He then noted that
Mr. Alford had a portable police scanner on the seat
next to him. J.A. 104. This caused Trooper Haner
concern because, “[t]he majority of people that [he]
contacted who had hand held scanners are involved
in some criminal activity”. J.A. 104. Mr. Alford also
had installed a radio tuned to the same frequency as
Trooper Haner’s. J.A. 103. The radio had a
microphone that allowed Mr. Alford to broadcast and
receive police communications. J.A. 104. Mr. Alford
also indicated that he had handcuffs. Mr. Alford
initially told Trooper Haner that “he worked for the
State Patrol and then he changed it to Texas, and
shipyard police”. J.A. 105-06, 35.
These facts, along with Mr. Alford’s
evasiveness in responding to questions concerning
his wig-wag headlights, led Trooper Haner to believe
that he had probable cause to arrest Mr. Alford for
the crime of impersonating a law enforcement officer.
J.A. 104-07.
5
2. Events Establishing Probable
Cause To Arrest Mr. Alford For The
Offense Of Obstructing A Law
Enforcement Officer
Shortly after Trooper Haner stopped
Mr. Alford, Sergeant Devenpeck arrived and began
questioning Mr. Alford about the existence of his
wig-wag headlights. Sergeant Devenpeck
characterized Mr. Alford as “talking in circles”.
J. A. 138. Initially, Mr. Alford told Sergeant
Devenpeck that he had permission from Kitsap
County to have wig-wag headlights and that “he
could use them as long as he wasn’t impersonating”.
J.A. 134. Sergeant Devenpeck knew this statement
was contrary to the law. J.A. 134-35. A little while
later Mr. Alford told Sergeant Devenpeck that the
wig-wag headlights were part of his alarm system.
J.A. 137-38. When asked to activate the wig-wag
headlights, Mr. Alford pushed buttons on his
keychain and his emergency flasher, none of which
operated the wig-wag lights. All the while, Trooper
Haner could see a switch prominently located on the
steering column that Mr. Alford never pressed.
J.A. 108-09. As it later turned out, that switch
activated the wig-wag headlights. J.A. 149. These
facts were presented to the jury and supported
probable cause to arrest Mr. Alford for obstructing a
law enforcement officer.
3. Events Leading To Mr. Alford’s
Arrest For The Offense Of Violating
Washington’s Privacy Act
During the course of questioning Mr. Alford
about his wig-wag headlights, Sergeant Devenpeck
noticed a shiny black object on the seat next to the
6
driver's seat. The object had previously been hidden
under a jacket next to Mr. Alford. Sergeant
Devenpeck looked to see if it was a weapon and then
noticed that it was a tape recorder with the play and
record buttons depressed and operating. He rewound
the tape and could hear that both his voice and
Mr. Alford’s voice had been recorded.
Sergeant Devenpeck had been trained on the
Privacy Act, Wash. Rev. Code 8 9.73.030;
Pet. 66a-68a. Believing he had probable cause,
Sergeant Devenpeck arrested Mr. Alford for violating
the Privacy Act. But he wanted to make sure he
“remembered the law properly as it related to
making the recording”. J.A. 151-52. He reviewed
language in the statute which makes it unlawful to
“record any [p]rivate conversation. without first
obtaining the consent of all of the persons engaged in
the conversation”. He then attempted to contact a
prosecuting attorney to make sure he was “on firm
ground”. J.A. 155-56.
Initially, Sergeant Devenpeck was unable to
reach Deputy Prosecuting Attorney Mark Lindquist.
A few minutes later, while Trooper Haner was
transporting Mr. Alford to jail, Sergeant Devenpeck
was able to reach Deputy Prosecutor Lindquist by
phone. The Sergeant and deputy prosecutor
discussed the Privacy Act, impersonation of an officer
(Wash. Rev. Code § 9A.60.040), Pet. 68a, and possible
false representations to an officer — obstructing
(Wash. Rev. Code § 9A.76.020). Pet. 69a; q. A. 177-78.
Sergeant Devenpeck read the Privacy Act statute to
the prosecutor over the phone. Pet. 8a, 18a. Deputy
Prosecutor Lindquist believed that, considering the
totality of the circumstances, the officers had
7
probable cause to arrest Mr. Alford, and he so
testified at trial. J.A. 177-79. !
Due to the Washington State Patrol's policy of
not stacking charges, the officers arrested and
charged Mr. Alford only with violating the Privacy
Act. J.A. 157.! The Privacy Act charge was dismissed
by the state District Court based on a decision of the
Washington Court of Appeals holding that
conversations between law enforcement officers and
motorists on public highways are not “private”
conversations for purposes of the Privacy Act. See,
Washington v. Flora, 68 Wash. App. 802, 845 P.2d
1355 (1992) (recording an arrest made by public
officers on a public thoroughfare near passersby did
not violate the Act because the conversation was not
private) Pet. 9a-10a.
B. Procedural History
Mr. Alford brought federal civil rights and
state law claims against the two Troopers and the
Washington State Patrol in the United States
District Court for the Western District of
Washington. Each of Mr. Alford’s claims was based
on an allegation that his arrest was without probable
cause and therefore was unlawful. Pet. 8a.
Petitioners moved for summary judgment on
two bases. First, Petitioners argued that the officers"
had probable cause to arrest Alford for violating the
Privacy Act. In this respect, Petitioners urged that
the circumstances surrounding the conversation in
this case were sufficiently different from those in
Mr. Alford was also given a traffic infraction for the
2 headlights. See Wash. Rev. Code § 46.37. 280(3).
24-25.
Flora, and rendered the conversation private and
subject to the Privacy Act prohibition. Second,
Petitioners argued that the officers were entitled to
qualified immunity in any event.
The District Court denied Petitioners’ motion
for summary judgment, concluding that the facts of
this case did not distinguish it from Flora. As to
qualified immunity, the District Court determined
that Flora had clearly established the inapplicability
of the Privacy Act. Pet. 45a-46a. On the second prong
of qualified immunity analysis, the District Court
concluded that there was a question of fact for the
jury whether the officers nonetheless reasonably
believed they had probable cause to arrest
Mr. Alford. J.A. 199-200.
The case then went to trial before a jury.
During trial, the deputy prosecuting attorney
testified that he had determined and advised the
officers that probable cause existed not only for the
Privacy Act violation, but also for impersonating an
officer and obstructing a law enforcement officer.
Specifically, at trial, Deputy Prosecuting Attorney
Lindquist testified, without objection:
Q Did you make a determination of
probable cause here?
A Yes, I did.
Q What was that determination?
A advised Sergeant Devenpeck there
was clearly probable cause.
Q Okay. And what was that determination
based on exactly?
9
A All the things that I just listed, the big
pictures. All the facts. I considered the
fact that he had wig-wag lights. I
considered the fact that he pulled in
behind a disabled motorist using those
wig-wag lights in a way that the
motorist might have interpreted him to
be a police officer. I looked at the fact
that there were handcuffs and a police
scanner in the vehicle. I also put a lot of
weight on the fact that the defendant
was evasive and not honest about those
wig-wag lights, and I looked at the fact
that that tape recorder was hidden.
J.A.179-80.
Mr. Alford did not take exception to any of the
court’s instructions to the jury. Jury Instruction 10
(J.A.199-200) described what each party was
required to prove to prevail. It stated in pertinent
part:
On plaintiffs federal claim, the plaintiff
has the burden of proving each of the following
by a preponderance of the evidence:
* * *
3. The acts or omissions of the defendant
were the proximate cause of the
deprivation of the plaintiffs
constitutional right to be free from
unreasonable arrest.
* * *
10
Each defendant has the burden of
proving each of the following by a
preponderance of the evidence:
1. That the defendant reasonably and in
good faith believed that the detention
and/or arrest of plaintiff was lawful and
acted on that belief;
2. That a reasonable officer acting under
the same circumstances at the same
time would have believed that the
detention and/or arrest were lawful;
* * *
If you find that each of the things on
which plaintiff has the burden of proof on a
claim has been proved, your verdict should be
for the plaintiff on that claim, unless you also
find that each of the things on which the
defendant has the burden of proof has also
been proved, in which event your verdict
should be for the defendant on that claim.
J.A. 199-200.
Jury Instruction 12 did not limit the jury's
consideration of probable cause to the Privacy Act
violation. Rather, it stated:
“An arrest made without probable cause
is unreasonable. Probable cause to arrest is
determined by viewing the totality of the
circumstances known to the arresting officer
at the time of the arrest. The standard is met
if the facts and circumstances within the
arresting officer's knowledge are sufficient to
warrant a prudent person to conclude that the
11
suspect has committed, is committing, or was
about to commit a crime.”
J.A. 201.
The jury reached a unanimous verdict in favor
of Petitioners. J.A. 207. Viewed most favorably to the
Petitioners, there was more than adequate evidence
for the jury to have found that there was probable
cause for Mr. Alford’s arrest and to have found that a
reasonable officer would have believed that
Mr. Alford’s arrest was lawful.
Mr. Alford moved for a new trial which was
denied. He then timely appealed to the Ninth
Circuit. In his appeal, Mr. Alford did not raise the
“closely related offense doctrine” and consequently,
that issue was not briefed by the parties. The Ninth
Circuit raised the “closely related offense doctrine”
sua sponte, a little over two weeks prior to oral
argument, when the court below directed the parties
to be prepared to discuss footnote 6 on page 1428 in
Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994),
cert. denied sub nom. Ball v. Gasho, 515 U.S. 1144
(1995) (discussing the “closely related offense
doctrine”). Pet. 24a.
In a split decision, the Ninth Circuit panel
invoked the “closely related offense doctrine” to rule
that the District Court abused its discretion in
denying Mr. Alford’s motion for a new trial. The
majority reasoned that there was no probable cause
for arrest under the Privacy Act because “[t]ape
recording officers conducting a traffic stop is not a
crime in Washington”. Pet. 9a.2 The majority then
2 Judge Gould dissented arguing that Petitioners were
entitled to qualified immunity for the Privacy Act arrest. The
12
rejected the alternative offenses for which probable
cause to arrest Mr. Alford existed (impersonating an
officer and obstructing an officer) based on the
“closely related offense doctrine”. Pet. 10a.
The majority below explained that, under the
“closely related offense doctrine”, “[p]robable cause to
arrest 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”. Pet. 10a. The
majority determined that the conduct underlying the
additional offenses was “unrelated to Alford's tape
recording” of his conversation with the officers. Id.
“Any impersonation charge would be based on
Mr. 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
headlights . . Pet. 10a-lla. The majority
disregarded probable cause to arrest Mr. Alford with
respect to these offenses simply because the “offenses
are not closely related to the crime for which
[petitioners] arrested [Alford] . . tape recording a
traffic stop”. Pet. IIa.
The majority below went on to deny qualified
immunity to the officers, rejecting the argument that
the “closely related offense doctrine” was not clearly
established. Pet. 12a-13a, n.2. The Ninth Circuit
concluded that the “closely related offense doctrine”
dissent observed that the officers “read a statute before making
an arrest, saw it literally covered the challenged conduct, and
double checked with a prosecuting attorney The dissent
concluded that the officers “were acting reasonably, even if it
turned out that the officers’ belief about the law was incorrect”.
Pet. 22a.
13
was clearly established, citing Gasho, 39 F.3d at
1428 n.6. Id. In reaching its “clearly established law“
conclusion, the Ninth Circuit failed to acknowledge
or consider that Washington courts do not follow the
doctrine (see Washington v. Huff, 64 Wash. App. 641,
826 P.2d 698, review denied 119 Wn.2d 1007 (1992)
(an arrest will be upheld as long as probable cause
objectively existed to arrest for any crime)) and
summarily dismissed a conflicting circuit court
decision, including United States v. Saunders, 476
F.2d 5, 6-7 (5th Cir. 1973). Pet. 10a. Petitioners cited
both of these cases to the Ninth Circuit.
The Ninth Circuit reversed the District
Court’s denial of Mr. Alford’s motion for a new trial.
The Ninth Circuit subsequently denied Petitioners’
timely petition for rehearing and rehearing en banc.
Pet. 23a. Petitioners filed a timely petition for a writ
of certiorari that was granted April 19, 2004.
SUMMARY OF ARGUMENT
1. An arrest that is objectively supported
by probable cause does not violate the Fourth
Amendment simply because the probable cause is for
a crime unrelated to the crime articulated by the
arresting officer. Probable cause for arrest is
measured by an “objective reasonableness” test.
Under this test, probable cause for arrest exists and
an arrest is reasonable under the Fourth
Amendment if at the time of arrest, the totality of
facts and circumstances known to the officer would
lead a reasonable officer to believe that an offense
has been committed. Neither the officer’s subjective
belief as to the existence of probable cause, nor the
officer’s subjective motives in making the arrest bear
14
on the existence of probable cause. The evaluation is
purely objective.
2. The Ninth Circuit departed from the
“objective reasonableness” test in evaluating
probable cause for Mr. Alford’s arrest, and found
probable cause lacking predicated on the “closely
related offense doctrine”. Under this doctrine, a court
evaluates probable cause for arrest based only on
those facts and circumstances known to the officer at
the time of arrest which are closely related to and
arise from the same conduct as the offense that the
officer announces at arrest. Thus, the doctrine
precludes consideration of facts and circumstances
that objectively establish probable cause to arrest,
where the officer announces an offense(s) for which
probable cause to arrest does not exist, and either
subjectively fails to appreciate that probable cause
exists for other unrelated offenses, or subjectively
decides not to announce or “stack” other unrelated
offenses in making the arrest. In each of these
respects, the “closely related offense doctrine”
disregards objectively existing probable cause for
arrest and irreconcilably conflicts with the Court's
“objective reasonableness” test for probable cause.
3. The Ninth Circuit also erred in
suggesting that the “closely related offense doctrine”
is necessary to avoid “sham” arrests or “later
extrapolated justification” for arrest. The “objective
reasonableness” test adequately safeguards against
wrongful arrest by requiring probable cause to be
based on facts and circumstances existing and known
to the officer at the time of arrest. The Ninth
Circuit’s additional suggestion that the “closely
related offense doctrine” somehow vindicates
15
objective reasonableness is refuted by the very
nature of the doctrine. The doctrine excludes from
the probable cause determination facts and
circumstances known to the officer at the time of
arrest, that objectively viewed, establish probable
cause. In addition, the doctrine inappropriately
intrudes on prosecutorial discretion to evaluate all of
the relevant circumstances and determine the most
appropriate charge to pursue.
4. Even if the “closely related offense
doctrine” were sound and served to vitiate probable
cause for Mr. Alford’s arrest, Petitioners would be
entitled to qualified immunity because the doctrine
was not clearly established law. In concluding
otherwise, the Ninth Circuit failed to consider all
relevant precedent. Specifically, it failed to consider
that Washington, other states, and other circuits
follow the “objective reasonableness” test of the
Court, not the “closely related offense doctrine”. The
Ninth Circuit also failed to recognize that its own
cases discussing the doctrine did not, and still do not,
clearly or consistently apply the preclusive aspect of
the doctrine. Under such circumstances, the law was
not clearly established and the Ninth Circuit erred in
denying Petitioners qualified immunity.
The judgment of the Ninth Circuit should be
reversed.
16
ARGUMENT
A. When Properly Assessed Under The
“Objective Reasonableness“ Standard,
Mr. Alford’s Arrest Was Lawful
1. The Court Consistently Applies An
“Objective Reasonableness” Test In
Assessing The Existence Of
Probable Cause To Arrest
As a seizure of a person, an arrest is subject to
the reasonableness requirement of the Fourth
Amendment. An “arrest of a suspect based on
probable cause is a reasonable intrusion under the
Fourth Amendment”. United States v. Robinson, 414
U.S. 218, 235 (1973). Probable cause, in turn, exists
if “at the moment of arrest” the facts and
circumstances within the knowledge of the officer
would warrant a reasonable officer to believe that
the suspect had committed or was committing an
offense (the “objective reasonableness” test). Beck v.
Ohio, 379 U.S. 89, 91 (1964).
In analyzing Fourth Amendment claims of
unlawful search and seizure, the Court consistently
applies this “objective reasonableness” test. The test
focuses on the facts and circumstances known to the
officer at the time of arrest. Id., see also Illinois v.
Gates, 462 U.S. 213, 238 (1983) (applying a “totality
of the circumstances” analysis to determine probable
cause for search warrant); Alabama v. White, 496
U.S. 325, 330-31 (1990) (considering the “totality of
the circumstances” in evaluating reasonable
suspicion for investigatory stop).
The law enforcement officer’s subjective beliefs
or motives play no role in this Fourth Amendment
17
analysis, as demonstrated by decisions of the Court
considering the validity of actions under the Fourth
Amendment in several different contexts. For
example, in Florida v. Royer, 460 U.S. 491 (1983),
the Court held that if the objective probable cause
test is met, it is not necessary to establish that the
particular officer making the arrest or search
subjectively believed that probable cause was
present. The Court observed, “[t]he fact that the
officers did not believe there was probable cause and
proceeded on a consensual or Terry-stop rationale
would not foreclose the State from justifying Royer's
custody by proving probable cause and hence
removing any barrier to relying on Royer’s consent to
search”. Royer, 460 U.S. at 507 (citing Peters v. New
York, decided with Sibron v. New York, 392 U.S. 40,
66-67 (1968)).
The “objective reasonableness” test also
applies without regard to the motives of the officers
involved. For example, in Robinson, the Court
declined to suppress evidence discovered during the
search of a suspect incident to a lawful arrest. The
Court rejected the suggestion that the validity of the
search depended on the subjective belief of the officer
with respect to the need for the search. “Since it is
the fact of custodial arrest which gives rise to the
authority to search, it is of no moment that [the
officer] did not indicate any subjective fear of the
[arrestee] or that he did not himself suspect that the
[arrestee] was armed”. Robinson, 414 U.S. at 236.
To the same effect, in Scott v. United States,
436 U.S. 128 (1978), the Court declined to suppress
telephone conversations intercepted by a wiretap on
the basis that the federal agents did not subjectively
18
intend to minimize interception of non-targeted
conversations. The statute under which the wiretap
was authorized contained a é minimization
requirement. The Court explained, “the fact that the
officer does not have the state of mind
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”. Scott, 436 U.S. at 138. In analyzing a Fourth
Amendment excessive force claim, the Court
similarly observed that “[a]n officer’s evil intentions
will not make a Fourth Amendment violation out of
an objectively reasonable [action]; nor will an
officer's good intentions make an objectively
unreasonable [action] constitutional”. Graham v.
Connor, 490 U.S. 386, 397 (1989).
The Court applied the same principle in the
context of a traffic stop in Whren v. United States,
517 U.S. 806 (1996). There, the Court held that a
traffic stop supported by probable cause was not
invalidated because the officers’ actual motivation
for the stop was enforcing drug laws. The Court
reiterated that ulterior motives on the part of the
arresting officer will not invalidate objectively
justifiable behavior. Jd. at 812 (citing United States
v. Villamonte-Marquez, 462 U.S. 579, 584, n.3 (1983);
United States v. Robinson, 414 U.S. 218 (1973); and
Scott v. United States, 436 U.S. 128 (1978)). The
Whren Court described Villamonte as “flatly
dismisslingl the idea that ulterior motive might
serve to strip the agents of their legal justification”
Whren, 517 U. S. at 812. Further, in describing its
decision in United States v. Robinson, the Whren
Court stated: “we held that a traffic-violation arrest
———
19
would not be rendered invalid by the fact that it
was a mere pretext for a narcotics search”. Whren,
517 U.S. at 812-13. The Court subsequently applied
the same principle to a traffic arrest based on
probable cause in Arkansas v. Sullivan, 532 U.S. 769
(2001).
Thus, the “objective reasonableness” test
applies regardless of whether the officer was
operating under a mistaken belief about the law,
Royer, and regardless of the officer's motivation for
the challenged action. Robinson; Scott; Whren. The
validity of the challenged action, whether a stop, an
arrest, or a search, is determined by whether the
action was objectively supported by adequate cause.
In this case, then, under the “objective
reasonableness” test, it should not matter that the
arresting officer articulated an offense not supported
by probable cause in arresting Mr. Alford, when an
objective assessment of the facts and circumstances
existing at the time of arrest established probable
cause for his arrest. Nor should it matter that in
arresting Mr. Alford, the officer did not articulate an
offense closely related to one for which probable
cause to arrest objectively existed. Substantial
evidence of probable cause was presented to support
the jury’s verdict in favor of the Petitioners, and the
Ninth Circuit erred in setting the verdict aside.
20
2. The “Closely Related Offense
Doctrine” Irreconcilably Conflicts
With The Court’s Precedent And
Improperly Limits The Inquiry Into
Probable Cause
The “closely related offense doctrine”
irreconcilably conflicts with the Court’s Fourth
Amendment jurisprudence. Unlike the “objective
reasonableness” test, the “closely related offense
doctrine” restricts the probable cause inquiry and
requires a court to ignore facts and circumstances
existing at the time of arrest in evaluating probable
cause. Under the doctrine, only facts and
circumstances “closely related” to the offense
articulated by the officer, that “involves the same
conduct” for which the arrest was made, may be
taken into account. Pet. 10a-lla. This is plainly
contrary to weighing all of the relevant facts and
circumstances existing at the time of arrest, known
to the arresting officer, as permitted by the “objective
reasonableness” test. Beck, 379 U.S. at 96.
The “closely related offense doctrine” also
contravenes the “objective reasonableness” test,
because the doctrine requires the court to ignore
probable cause based on the beliefs or motivations of
the arresting officer. In this case, the “closely related
offense doctrine” discarded facts and circumstances
that in fact established probable cause to arrest,
based on the officer’s subjective misunderstanding as
to the offense(s) for which probable cause existed,
and the officer's subjective choice to articulate fewer
than all of the offenses that justified arrest.
That the “closely related offense doctrine”
irreconcilably conflicts with the Fourth Amendment
21
jurisprudence of the Court perhaps is most apparent
when one compares this case to Royer. Under Royer,
460 U.S. at 507, if law enforcement officers do not
believe they have probable cause to arrest, but
actually do, the arrest is valid. In the instant case,
under the “closely related offense doctrine”, if law
enforcement officers believe they have probable
cause to arrest and in fact do, but for an offense not
related to the offense they articulate, the arrest is
invalid. An officer’s mistaken belief about the
particular offense(s) for which probable cause exists
no more violates the Fourth Amendment than a
mistaken belief that probable cause does not exist at
all.
The Ninth Circuit erred in relying on the
“closely related offense doctrine” to vitiate probable
cause for Mr. Alford's arrest and to set aside the jury
verdict in favor of Petitioners.
3. The “Closely Related Offense
Doctrine” Is Ill-Suited To Achieve
Its Proffered Objectives And
Produces IIlogical And Unjust
Results
The Ninth Circuit offers two justifications for
the “closely related offense doctrine”. First, the
majority below states that the doctrine “accounts for
the possibility” of sham arrests or “later extrapolated
justifications” for arrest. Pet. 13a, n.2. Second, the
majority below asserts that the doctrine focuses on
the “objective reasonableness” of the arrest. Id.
Neither of these proffered justifications for the
doctrine is sound.
22
The Ninth Circuit's use of the “closely related
offense” doctrine to preclude “later extrapolated
justifications” for arrest and so-called “sham arrests”
reflects a fundamental failure to recognize that the
“objective reasonableness” test governs the existence
of probable cause. Pet. 13a, n.2. The “objective
reasonableness” test is concerned only with whether
the facts and circumstances existing and known at
the time of arrest provide probable cause to arrest.
Under the “objective reasonableness” test, it does not
matter hen justification for the arrest first occurs to
the arresting officer, or when justification for the
arrest first is articulated by the officer. Yet the Ninth
Circuit's concern with later extrapolated
justification” for arrest is about nothing else.
Moreover, even if the “closely related offense
doctrine” advanced a legitimate purpose in
precluding “later extrapolated justification” for
arrest, its allowance of later extrapolated
justification” for closely related offenses, lacks
rationality. If a “later extrapolated justification” for
arrest is evil, it is no less evil simply because the
“later extrapolated justification” concerns the same
conduct as the wrongly cited offense.
In addition, the majority below fails to explain
how the “closely related offense doctrine” discourages
sham arrests to any greater extent than the
“objective reasonableness” test. There is no good
reason to believe that it does. For an arrest to be
valid under the “objective reasonableness” test, the
facts and circumstances existing and known to the
officer at the time of the arrest must establish
probable cause. Beck, 379 U.S. at 96. The test does
not allow the officer to rely on post-arrest facts or
23
circumstances to fill any void in probable cause. Id.
The “objective reasonableness” test thus provides no
incentive to officers to arrest persons without
probable cause. To the contrary, the test plainly
discourages sham _ arrests by precluding
consideration of post-arrest facts and circumstances
in evaluating the validity of the arrest. Nor is it
rational to believe that the objective
reasonableness” test encourages an officer to make
an arrest where the officer does not believe probable
cause exists, on the slim hope that it actually does.“
The second rationale offered by the Ninth
Circuit majority for the “closely related offense
doctrine” — that it eviscerates objective
reasonableness” — simply is incorrect. Pet. 13a, n.2.
The “closely related offense doctrine” does not look at
the totality of the facts and circumstances existing at
the time of the arrest to determine whether
objectively viewed, they provide probable cause for
arrest. Instead, the doctrine precludes consideration
of relevant facts and circumstances simply because
the officer has cited an offense for which probable
cause did not exist and that offense is not “closely
related” to an offense or offenses for which probable
cause did exist. Thus, the doctrine turns the analysis
on its head, making it one of “subjective
reasonableness’.
The doctrine also turns the validity of an
arrest into little more than a game that the arrestee
wins even where there is probable cause for arrest,
simply because the officer makes a mistake in
3 See Wayne R. La Fave & Jerald H. Israel, 2 Crim.
Proc., § 3.1(d) (2d ed. 2004) terming such an assumption
“fanciful”.
24
announcing the offense. And the arrestee wins even
where, as in this case, there is absolutely no
suggestion that the officers were endeavoring to
make a sham arrest.“ Such a doctrine does not
advance the interests of justice.
4. The Closely Related Offense
Doctrine Intrudes On The Proper
Exercise Of Prosecutorial
Discretion
Typically, within the criminal justice system,
the initial on-the-spot decision by a police officer of
what offense to cite for the arrest is reviewed pre-
filing by supervisors or, as occurred in this case, by a
prosecuting attorney. See, 1 Wayne R. La Fave,
Criminal Practice Series, Criminal Procedure, The
Decision to Charge § 1.3(8) (3d ed. 1996). The
As the dissenting judge recognized:
“The officers whom the majority would tag with
liability, despite an exculpatory jury verdict . stopped
Alford for good reason because his approach to stranded
vehicles, giving an appearance that he was a police
officer, was ominous to say the least. After stopping and
questioning Alford . the real officers arrested Alford
in good faith, with their judgment seconded by a public
prosecutor who was consulted”. Pet. 17a.
5 Moreover, limiting consideration of probable cause to
matters closely related to the articulated offense, risks
encouraging officers to cite a suspect for every possible offense
to avoid civil rights liability and prevent suppression of
evidence. This otherwise needless “stacking” of charges could
have the unfortunate consequences of higher bail and longer
pre-arraignment and pretrial detention of criminal suspects.
See United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971)
(“Such a clogging of the criminal process already heavily
encumbered would be pointless” .)
25
prosecutor plays an important role in the criminal
justice process, including independent review and
evaluation of the nature and degree of the criminal
charge which will be pursued. See generally, Imbler
v. Pachtman, 424 U.S. 409, 423 (1976) (recognizing
the need to protect the independence and courage of
prosecutors in, inter alia, charging decisions through
absolute immunity). The Court has repeatedly noted
that [Slo long as the prosecutor has probable cause
to believe that the accused committed an offense
defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion”.
Wayte v. United States, 470 U.S. 598, 608 (1985)
quoting Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978). In Wayte, the Court also noted that this broad
discretion rests largely on the recognition that
decisions to prosecute are ill-suited to judicial
review. Id.
When a prosecutor determines that a charge is
not supported by a probable cause, no sound policy is
served by precluding the prosecutor from amending
the charge to one for which probable cause does
exist. The prosecutor’s discretion in this respect does
not interfere with prompt judicial review of whether
probable cause exists to detain the suspect, which
must occur no later than 48 hours after arrest.
County of Riverside v. McLaughlin, 500 U.S. 44
(1991). Subsequently, a prosecutor should have
authority to amend a charge as additional
information is discovered. By limiting prosecutors’
filing decisions, the “closely related offense doctrine”
ill-serves the criminal justice system.
26
B. Even If The “Closely Related Offense
Doctrine” Is Valid, Petitioners Are
Entitled To Qualified Immunity Because
The Doctrine Was Not Clearly
Established Law
As section A of this brief demonstrates,
Mr. Alford’s arrest did not violate the Fourth
Amendment. For that reason, there is no need for
any further inquiry concerning qualified immunity.
Saucier v. Katz, 533 U.S. at 201. Even if there were,
Petitioners are entitled to qualified immunity
because the “closely related offense doctrine” was not
clearly established.
1. Qualified Immunity Applies Absent
Violation of Clearly Established
Law
Public officers acting in their official capacities
are “shielded from liability for civil damages insofar
as their conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known”. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity is defined quite broadly to provide a
deferential standard under which public officers can
operate. “It provides ample protection to all but the
plainly incompetent or those who knowingly violate
the law. [If officers of reasonable competence
could disagree on thfe] issue [whether or not a
specific action was constitutional], immunity should
be recognized”. Malley v. Briggs, 475 U.S. 335, 341
(1986). To be considered “clearly established” for
purposes of qualified immunity analysis, “[t]he
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is
27
doing violates that right”. Anderson v. Creighton, 483
U.S. 635, 640 (1987).
In determining whether the law was clearly
established, a court should consider “all relevant
precedents”. Elder v. Holloway, 510 U.S. 510 (1994).
In Wilson v. Layne, 526 U.S. 603 (1999), the Court
considered whether it was clearly established that
the Fourth Amendment- would prohibit law
enforcement officers from allowing media
representatives to accompany them in executing an
arrest warrant inside a private residence. The Court
began with the observation that the question was “by
no means open and shut and looked to a wide range
of sources before concluding that the law was not
clearly established. Id., at 616. The Court referenced
an intermediate state appellate decision,
unpublished decisions of federal District Courts and
a written policy of the relevant law enforcement
agency. Id., at 616-617. The Court additionally
observed that the plaintiffs had not identified “a
consensus of cases of persuasive authority such that
a reasonable officer could not have believed that
these actions were lawful”. Id., at 617. See also
Burgess v. Lowery, 201 F.3d 942, 944-45 (7th Cir.
2000) (precedent from other circuits must be
considered in determining whether a right was
clearly established); Richardson v. Selsky, 5 F.3d
616, 623 (2nd Cir. 1993) (declining to hold prison
officials to a standard of conduct that was subject of
conflicting federal District Court decisions).
28
2. The “Closely Related Offense
Doctrine” Was Not Clearly
Established Law
Even assuming its validity, the “closely related
offense doctrine” was not clearly established law for
at least two reasons. First, the majority below failed
to consider all relevant precedent when it concluded
that the doctrine was clearly established law.
Second, the Ninth Circuit did not consistently
articulate or apply the doctrine — and still does not.
When all relevant precedent is considered, including
Washington law and the law of other federal circuits
and states, the “closely related offense doctrine” was
anything but clearly established.
a. The Ninth Circuit failed to
consider all relevant
precedent
The Alford majority erred by failing to
consider all relevant precedent in concluding that the
“closely related offense doctrine” was clearly
established. First, the Ninth Circuit failed to note or
take into account that Washington does not apply
the “closely related offense doctrine”. In a host of
cases, including Washington v. Huff, 64 Wash. App.
641, 826 P.2d 698, review denied, 119 Wash.2d 1007
(1992), cited to the Ninth Circuit by Petitioners,
Washington courts evaluate the validity of an arrest
under the “objective reasonableness” test enunciated
by the Court. See, e.g., Washington v. Vangen, 72
Wash. 2d 548, 433 P.2d 691 (1967); City of Seattle v.
Cadigan, 55 Wash. App. 30, 776 P.2d 727, review
denied, 113 Wash.2d 1025 (1989); Washington v.
Stebbins, 47 Wash. App. 482, 735 P.2d 1353, review
denied, 108 Wash.2d 1026 (1987); Washington v.
29
Greene, 75 Wash.2d 519, 521, 451 P.2d 926, 928
(1969).
In addition, as noted in the amicus brief of
California in support of the petition for a writ of
certiorari in this case, Washington is not the only
state in the Ninth Circuit that follows the Court’s
Fourth Amendment jurisprudence and finds an
arrest lawful as long as probable cause exists to
arrest for any crime.“ California does. See People v.
Rodriguez, 53 Cal. App. 4th 1250, 1262 (1997); In re
Justin K., 98 Cal. App. 4th 695, 699 (2002). So does
Alaska. See Alaska v. Kendall, 794 P.2d 114, 117
(1990) (requiring officers to state correct ground for
arrest would cause officers to state every possible
ground and exclude evidence in cases where the
person arrested had not had his rights violated).’
6 The Court has never even mentioned the so called
“closely related offense doctrine”. In United States v. Di Re, 332
U.S. 581, 592 (1948), the Court assumed, without deciding: “ . . .
that an arrest without a warrant on a charge not communicated
at the time may later be justified if the arresting officer's
knowledge gave probable cause to believe that any felony found
in the statute books had been committed
7 Many states outside the Ninth Circuit also do not
apply the “closely related offense doctrine”. See Golden v.
Commonwealth of Virginia, 30 Va. App. 618, 519 S.E.2d 378
(Va. App. 1999); State v. Cote, 547 So.2d 993 (Fla. App. 4 Dist.,
1989); People v. Kincy, 435 N.E.2d 831 (Ill. App. 2 Dist., 1982);
Tennessee v. Duer, 616 S.W.2d 614 (Tenn. Crim. App. 1981).
New Hampshire, Rhode Island and Delaware statutes provide
that an arrest will be upheld even if the officer charged the
wrong offense. N.H. Rev. Stat., § 594:13; R.I. Stat. Gen. Laws Of
R. I. Ann., 1956, Title 12. Crim. Proc., Chapter 7. Arrest; Del.
Code. Ann., Title 11, § 1905. The Uniform Arrest Act contains
an analogous provision. § 7 of the Uniform Arrest Act. See,
Warner, The Uniform Arrest Act, 28 Va. Law Rev. 315, 346
(1942).
30
The law of Washington and the other states in
the Ninth Circuit is particularly significant in this
context, as it directly bears on the viability of a
federal civil rights claim. If the prosecutor had
decided to charge Mr. Alford with either of the two
offenses for which probable cause existed, a
permissible course under Washington law, a
conviction would have precluded this challenge to the
validity of his arrest. See Wells v. Bonner, 45 F.3d 90
(5th Cir. 1995) (existing conviction barred false
arrest claim under Heck v. Humphrey, 512 U.S. 477
(1994); Malladay v. Crunk, 902 F.2d 10 (8th Cir.
1990) (applying common law rule that a plaintiff
cannot recover under 28 U.S.C.§ 1983 for an arrest
resulting in conviction).
The Court has recognized that the authority of
state and federal courts to independently address
questions of federal law will cause conflicts and
frictions to occur when contrary interpretations are
made. See Atlantic Coast Line R. R. Co. v.
Brotherhood of Locomotive Engineers, 398 U.S. 281,
286 (1970). When these conflicts inevitably occur,
and a state’s highest court and federal circuit court
are irreconcilably in conflict on a question of
constitutional magnitude, a final resolution of the
disagreement by the Court is necessary before the
law is clearly established.“ The law on qualified
immunity does not require public officials to
simultaneously serve two masters - choosing between
By analogy, under ADEPA, 28 U.S.C. § 2254(d), a
circuit court cannot abrogate a state decision on a constitutional
issue unless it is contrary to clearly established United States
Supreme Court precedent, not dicta. Lockyer v. Andrade, 538
U.S. 63, 71 (2003).
31
conflicting state and circuit court decisions - to avoid
civil rights liability.
In addition, the Ninth Circuit explicitly
declined to give any weight to conflicting precedent
from other circuits with respect to the validity of the
“closely related offense doctrine”. The Alford majority
dismissed United States v. Saunders, 476 F.2d at 6-7
(verbal announcement of the wrong offense does not
vitiate an arrest if probable cause exists for another
crime) noting only: “Whatever the rule may have
been in that circuit, this is not the test applied in the
Ninth Circuit”. Pet. 10a.9
The Alford majority's disregard of conflicting
authority is contrary to the Court’s recognition that
if judges thus disagree on a constitutional
question, it is unfair to subject police to money
damages for picking the losing side of the
controversy”. Wilson v. Layne, 526 U.S 603 (1999). As
the Court noted, “given such an undeveloped state of
the law, the officers in this case cannot have been
“expected to predict the future course of
constitutional law”. Wilson, 526 U.S. at 617-18, citing
Procunier v. Navarette, 434 U.S. 555, 562 (1978).
Law enforcement officials are not required to always
err on the side of caution when the law is not clearly
established, See Davis v. Scherer, 468 U.S. 183, 196
(1984), citing Scheuer v. Rhodes, 416 U.S. 232, 246
(1974).
Although Saunders has not been overruled, it
apparently is no longer followed in the Fifth Circuit. See Vance
v. Nunnery, 137 F.3d 270 (5th Cir. 1998). Saunders is still cited
as precedent in the 11th Circuit, which was formerly part of the
Fifth. See Lee i Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002)
quoting Saunders, 476 F.2d at 7.
32
b. The Ninth Circuit has not
consistently applied the
“closely related offense
doctrine”
The majority below concluded that the
decision of the Ninth Circuit in Gasho was
controlling authority, clearly establishing the
applicability of the “closely related offense doctrine”
to this case. Pet. 12a-13a, n.2. Despite this statement
by the Ninth Circuit, the applicability of the doctrine
was not clearly established at the time this case
arose, and in fact, still is not clearly established.
In Gasho, the question of whether the “closely
related offense doctrine” restricts facts and
circumstances that may be considered in evaluating
probable cause for arrest to those arising from the
same conduct as the articulated offense, was not at
issue. That is so because the offense for which Gasho
was arrested “unlawful removal of property under
the control or custody of customs”, 18 U.S.C. § 549,
was closely related to the offenses for which probable
cause actually existed, foreseeable rescue of seized
property under 18 U.S.C. § 2233 or removal of
property to prevent seizure, 18 U.S.C. § 2232. Thus,
Gasho neither decided whether the doctrine
precludes probable cause to arrest for unrelated
offenses in evaluating the validity of an arrest, nor
held that it did. For this reason, Gasho cannot fairly
be said to have clearly established the preclusive
effect of the doctrine.
Additional Ninth Circuit cases make the state
of the law with respect to the doctrine even less
33
clear. In United States v. Patzer, 284 F.3d 1043,
1045 n.4 (9th Cir. 2002), the Ninth Circuit, albeit in
dicta, cited United States v. Bookhardt, 277 F.3d 558
(D.C. Cir. 2002) for the proposition that “an arrest is
. . valid if the same officer had probable cause to
arrest the defendant for another offense”. The Ninth
Circuit termed this a “true statement of law” without
intimating that the rule was restricted to probable
cause to arrest for a closely related offense(s). Id.
In addition, while Mr. Alford’s appeal was
pending before the panel in this case, a different
three judge panel of the Ninth Circuit issued an
opinion in Bingham v. City of Manhattan Beach, 329
F.3d 723 (9th Cir. 2003) (Bingham J. In Bingham I,
an adult driver was arrested for driving with an
expired license. The governing statute authorized
arrest of drivers for this offense only if they were age
sixteen or younger. The driver subsequently brought
a civil rights action alleging unlawful arrest.
In a split decision, the Bingham I panel held
that the officer was entitled to qualified immunity
because there was probable cause to arrest the driver
to verify an outstanding warrant — the facts and
circumstances of which were entirely unrelated to
the articulated offense of driving with an expired
license. Petitioners cited Bingham I to the panel still
considering Alford, but to no avail. Pet. 59a-60a.
After the Ninth Circuit issued its opinion in
this case, purporting to find the “closely related
offense doctrine” well established in Gasho, it
amended the opinion in Bingham I. See Bingham v.
City of Manhattan Beach, 341 F.3d 939 (9th Cir.
2003) (Bingham II). Bingham II suggests that the
court declined to apply the doctrine in that case
34
because the facts did not give rise to concern that the
outstanding warrant was an “ex post facto”
justification for the driver’s arrest. Bingham II, 341
F.3d at 952.
In this respect, the circumstances in
Bingham II are not different from the circumstances
in this case. In neither case was there an effort to
rely on facts or circumstances arising post-arrest to
establish probable cause. Yet under the Ninth
Circuit’s “clearly established law”, the doctrine
applies to this case to preclude facts giving rise to
probable cause for arrest, but not to the legally
analogous circumstances of Bingham II.
Where, as here, the Ninth Circuit’s precedents
remain inconsistent in describing and applying the
“closely related offense doctrine”, neither the
doctrine nor its applicability to this case was clearly
established law. Wilson v. Layne, 526 U.S. at 616-
618.
When all relevant precedent is considered,
even today, the “closely related offense doctrine” is
not clearly established. It hardly would be plain to
all but an incompetent officer that an arrest is
unlawful even where there is probable cause for
arrest, if the offense articulated by the officer is not
“closely related” to an offense for which probable
cause to arrest exists. In light of the clear divergence
of authority, state and federal, on whether a court is
constitutionally required to ignore the existence of
probable cause for an offense unrelated to one cited
at the time of arrest, Petitioners are entitled to
qualified immunity.
35
CONCLUSION
. For the foregoing reasons, the judgment of the
Ninth Circuit Court of Appeals should be reversed.
Respectfully submitted,
CHRISTINE O. GREGOIRE
Attorney General
Robert K. Costello
Deputy Attorney General
Maureen A. Hart
Senior Asst. Attorney General
Michael P. Lynch*
Senior Counsel
Eric A. Mentzer
Assistant Attorney General
629 Woodland Square Loop SE
P.O. Box 40126
Olympia, WA 98504-0126
360-459-6600
June 16, 2004 *Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.