Amicus Curiae Brief — Devenpeck v. Alford

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No. 03-710 1_MPPICE OF THE CLERK

In the Supreme Court of the United States

GERALD DEVENPECK, ET AL., PETITIONERS

JEROME ANTHONY ALFORD

ON WRIT OF CERTIORARI TO THE UNITEDSTATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

CHRISTOPHER A. WRAY

Assistant Attorneys General

PAUL D. CLEMENT

MICHAEL R. DREEBEN

Deputy Solicitors General

JOHN P. ELWoOOD

clssistant to the Solicitor

General

JOEL M. GERSHOWITZ

RICHARD A. OLDERMAN

Attorneys

Department of Justice

Washington, D.C. 20580-0001

(20.2) 5614-2217

QUESTIONS PRESENTED

1. Whether an arrest is valid under the Fourth Amend-

ment when the grounds given by the arresting officers are

later determined to be unfounded, but the facts known to the

officers objectively establish probable cause for a different

offense, where the second offense is not “closely related” to

the stated grounds for the arrest.

2. Whether officers are entitled to qualified immunity for

such an arrest when, at the time of the arrest, courts were in

conflict over whether, and under what circumstances, a

“closely related offense” rule governed the validity of

arrests.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

Respondent’s arrest did not violate the Fourth Amend-

ment, let alone clearly established law 9

I. An arrest on a charge that is later found to be

invalid is still lawful if the police had probable

cause to arrest the defendant for a different

offense, even if that offense is not closely related

to the offense that was the articulated basis for

the arrest 10

A. The “closely related offense” doctrine

conflicts with basic Fourth Amendment

principles ll

B. The “closely related offense” doctrine is

difficult to administer and yields disparate

ona’

results 16

C. The “closely related offense” doctrine harms

the interests of arrestees 19

D. The “closely related offense” doctrine cannot

be justified as a deterrent to sham or

fraudulent arrests 20

II. The officers are entitled to qualified immunity ........ 24

Conclusion 28

TABLE OF AUTHORITIES

Cases:

Anderson v. Creighton, 483 U.S. 635 (1987) . 23. 24

Arkansas v. Sullivan, 582 U.S. 769 (2001) 13

(IIT)

Cases—Continued: Page

Atwater v. City of Lago Vista, 532 U.S. 318

(2001) = 16

Avery v. King, 110 F.3d 12 (6th Cir. 1997) 16

Barna v. City of Perth Amboy, 42 F 3d 809 (3d Cir.

1994) 0 10

Biddle v. Martin, 992 F. 2d 673 (7th Cir. 199) 18, 26

Bivens v. S. Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) 1

Bond v. United States, 529 U.S. 334 (2000) . II. 13

Brown v. Illinois, 422 U.S. 590 (1975) 21

Calusinski v. Kruger, 24 F.3d 981 (7th Cir. 1994) 20

Colorado v. Spring, 479 U.S. 564 (1987) 20

Driebel v. City of Milwaukee, 298 F. 3d 622 (7th

Cir. 2002) 16

Eriksen v. Mobay Corp., 41 Pad 488 (Wash. Ct.

App. 2002) 25

Florida v. Jimeno, 500 U.S. 248 (1991) 11

Florida v. Royer, 460 U.S. 491 (1983) 8,14

Gasho v. United States, 39 F.3d 1420 (9th Cir.

1994), cert. denied, 515 U.S. 1144 (1995) 6, 17. 26

Graham v. Connor, 490 U.S. 386 (1989) 11

Hanion v. Berger, 526 U.S. 808 (1999) 27

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 1

Horton v. California, 496 U.S. 128 (1990) 11,12

Hunter v. Bryant, 502 US. 224 (1991) 9, 24

Illinois v. Gates, 462 U.S. 213 (1983) 23

Illinois v. Rodriguez, 497 U.S. 177 (1990) 23

Indianapolis v. Edmond, 531 US. 32 (2000) 11

Kijonka v. Seitzinger, 363 F 3d 645 (7th Cir.

2004 ) 25

Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002 10

Maryland v. Macon, 472 US. 463 (1985) 11, 12

Maryland v. Pringle, 1248. Ct. 795 (2003) 7, 10

Murray v. United States, 487 U.S. 533 (1988) .................. 21

Ni v. Williams, 467 US. 431 (1984) 21,22

Ohio v. Robinette, 519 US. 33 (1996) 12

Cases—Continued:

Ornelas v. United States, 517 U.S. 690 (1996)

Pfannstiel v. City of Marion, 918 F.2d 1178

(5th Cir. 1990)

Richardson v. Bonds, 860 F 2d 1427 (7th Cir.

1988)

Saucier v. Katz, 533 U.S. 194 (2001)

Page

18, 26

12, 18, 19

9, 10

Scott v. United States, 436 U.S. 128 (1978) .............

Sheehy v. Town of Plymouth, 191 F.3d 15 (Ist

Cir. 1999)

Sibron v. New York, 392 U.S. 40 (1968)

11, 12, 13

12, 16, 17, 18

8, 15

State v. Flora, 845 P.2d 1355 (Wash. Ct. App.

1992)

State v. Huff, 826 P.2d 698 (Wash. Ct. App.), review

denied, 833 P.2d 387 (Wash. 1992)

4, 5,6

State v. Romeo, 203 A.2d 23 (N.J. 1964),

cert. denied, 379 U.S. 970 (1965)

State v. Vangen, 433 P.2d 691 (Wash. 1967)

Terry v. Ohio, 392 U.S. 1 (1968)

Texas v. Cobb, 532 U.S. 162 (2001)

United States v. Allen, 247 F.3d 741 (8th Cir. 2001),

vacated on other grounds, 536 U.S. 953 (2002),

and cert. denied, 539 U.S. 916 (2003)

United States v. Anderson, 923 F 2d 450 (6th

Cir.), cert. denied, 499 U.S. 980 and 500 U.S. 936

(1991)

United States v. Atkinson, 450 F. 2d 835 (5th Cir.

1971), cert. denied, 406 U.S. 923 (1972) ............

United States v. Bookhardt, 277 F.3d 558 (D.C.

Cir. 2002)

United States v. Bowman, 907 F 2d 63 (8th Cir.

1990)

16, 18, 19, 26

10, 19

United States v. Cervantes, 19 F.3d 1151 (7th Cir.

1994)

United States v. Crisco, 725 F 2d 1228 (9th Cir.),

cert. denied, 466 U.S. 977 (1984)

United States v. Dixon, 509 U.S. 688 (1993)

Cases Continued: Page

United States v. $557,933.89 in U.S. Funds, 287

F. d 66 (2d Cir. 2002) 15

United States v. Knights, 534 U.S. 112 (2001) 11

D/nited States v. Ortiz, 422 U.S. 891 (1975) 25

United States v. Reed, 349 F.3d 457 (7th Cir.

2003) 14

United States v. Robinson, 414 U.S. 218 (1973) ............... 11

United States v. Roy, 869 F.2d 1427 (11th Cir.),

cert. denied, 493 U.S. 818 (1989) 15

United States v. Santana-Garcia, 264 F.3d 1188

(10th Cir. 2001) 15

United States v. $557,933.89 in US Funds, 287 F. 3d

66 (2d Cir. 2002) 15

United States v. Villamonte-Marquez, 462 U.S.

579 (1983) 12

United States v. Watson, 423 US. 411 (19760 10

Vance v. Nunnery, 137 F.3d 270 (5th Cir. 1998) .............. 12

Washington Mobilization Comm. v. Cullinane, 566

F.2d 107 (D.C. Cir. 1977) 23

Whren v. United States, 517 U.S. 806 (1996) 8,11,

12, 13, 14

Williams v. Schario, 93 F 3d 527 (8th Cir. 1996) 20

Wilson v. Layne, 526 U.S. 603 (1999) 9, 27

US. Const.:

Amend. IV passim

Amend. V (Double Jeopardy Clause) 15, 17

Amend. VI 20

Amend. XIV 5

42 U.S.C. 1988 1,5

S. D. Codified Laws § 23A-3-4 (Michie 1998) 20

Tenn. Code Ann. § 40-7-106 (2003) 20

Wash. Rev. Code Ann. (West):

§ 9.73.030(1 h (2003) 3, 25

§ 94.60.040 (2000 & Supp. 2004) 4,24

VII

Statutes—Continued: Page

§ 9A.76.020 (2000 & Supp. 2004) 4,24

§ 46.37.280(3) (2001) 2,4

Miscellaneous:

Wayne R. LaFave, Search and Seizure (3d ed. 1996):

Vol. 1 16, 22, 27

Vol. 3 (& Supp. 2004) 20, 23

In the Supreme Court of the United States

No. 03-710

GERALD DEVENPECK, ET AL., PETITIONERS

JEROME ANTHONY ALFORD

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns the law of qualified immunity and the

interpretation of the Fourth Amendment right against un-

reasonable seizures. The United States has a substantial

interest in the development of both Fourth Amendment law

and principles of qualified immunity. The same principles of

qualified immunity that apply in civil actions against state

and local officials under 42 U.S.C. 1983 also apply in civil

actions against federal personnel under Bivens v. Six Un-

known Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971). See Harlow v. Fitzgerald, 457 U.S. 800, 818

n.30 (1982). And, principles of Fourth Amendment law apply

to the United States because of its role in the investigation

and prosecution of federal crimes.

(1)

STATEMENT

1. On the night of November 22, 1997, Washington State

Patrol officer Joi Haner noticed a disabled vehicle on the

shoulder of a “dark and deserted” stretch of highway in

Kitsap County, Washington. Pet. App. 6a. As he passed the

disabled car, Haner saw another car pull in behind it, which

he later learned was driven by respondent Jerome Alford.

Haner stopped to assist the motorists. As Haner stepped

from his vehicle, respondent hurriedly returned to his car.

Id. at 30a; J.A. 95. Respondent told Haner that the people in

the stopped car had a flat tire and needed a flashlight.

Respondent then drove off. Pet. App. 6a; J.A. 95.

The occupants of the disabled car told Haner that they

thought respondent was a police officer, in part because his

car had “wig-wag” headlights, which alternately flash on and

off and are commonly used on police vehicles. Washington

law prohibits persons other than police officers from

operating vehicles equipped with flashing headlights. Pet.

App. 30a; Wash. Rev. Code Ann. § 46.37.280(3) (West 2001).

The motorists also said that respondent had left his flash-

light behind, which Haner thought reflected suspicious haste

to leave the scene. Pet. App. 6a; J.A. 96-97. Because Haner

was concerned that respondent was pretending to be a police

officer to prey on motorists, Haner called his supervisor, pe-

titioner Sergeant Gerald Devenpeck, to alert him and re-

quest assistance. J.A. 98-101.

Haner drove off in pursuit of respondent. Once Haner had

pulled respondent over, Haner noticed that his license plate

was nearly unreadable beneath a darkly tinted cover.

Through the car window, Haner observed that respondent

had a police-band radio broadcasting police communications,

a portable police scanner, and handcuffs. Pet. App. 7a, 30a;

J.A. 102-106. Respondent initially told Haner that “he

worked for the State Patrol, and then he changed it to [the]

Texas [Highway Patrol], and [then to] the [Puget Sound

Naval] [Shipyard police.” J. A. 106. Respondent said that

his flashing headlights were part of an alarm system that

had just been installed, but he claimed to be unable to acti-

vate them at Haner’s request. J.A. 107. Haner noticed that

in his effort to activate the flashing headlights, respondent

had pressed several buttons on his keychain and dashboard,

but not a button on the steering column that Haner sus-

pected controlled the lights. J.A. 108.

Devenpeck then arrived and discussed with Haner what

had happened. J.A. 110-111. Respondent told Devenpeck

that he had previously been cited by the Kitsap County

Sheriff for having flashing headlights but that he believed

they “were legal because * * * the Kitsap County Sheriff

had apologized to him and sent him a letter and * * * the

ACLU said he could use them as long as he wasn’t im-

personating [a police officer].” J. A. 134. Because Devenpeck

was suspicious of respondent’s claim that the flashing lights

were simply a feature of his alarm, he asked respondent to

show him the section of the alarm user’s manual that would

describe “what would happen when you activated the

alarm.” J. A. 138. Devenpeck then noticed an operating tape

recorder concealed beneath a coat on respondent’s passenger

seat and concluded that respondent had been recording the

conversation with the officers. Pet. App. 7a. Devenpeck told

respondent that he was under arrest for recording the

conversation with the officers without their consent. Ibid.;

J.A. 145. At the scene, Devenpeck reviewed a copy of

the Washington Privacy Act, Wash. Rev. Code Ann.

§ 9.73.030(1)(b) (West 2003), which provides that, “it shall be

unlawful for any individual * * * [to] record any * * *

Iplrivate conversation * without first obtaining the

Relevant provisions of the Washington Code are reproduced at Pet.

App. 66a-69a.

consent of all the persons engaged in the conversation.” See

Pet. App. 14a & n.4. Devenpeck’s review confirmed his

belief that the Act prohibited respondent’s actions. /d. at

16a; J.A. 142, 144, 152.

Respondent said that, because he had had a similar pro-

blem recording a conversation with other police officers, he

carried in his glove compartment a copy of a Washington

Court of Appeals decision holding that the Privacy Act did

not apply to the tape-recording of police officers performing

official duties, an apparent reference to State v. Flora, 845

P.2d 1355 (Wash. Ct. App. 1992). Pet. App. 7a. While con-

ducting an inventory of respondent’s car in preparation to

impound it, Devenpeck did not find a copy of the Flora

decision in the glove compartment or elsewhere in the car.

J. A. 151. Devenpeck also pressed the button Haner had

noticed and activated the flashing headlights. Pet. App. 32a.

While Haner was taking respondent to jail, Devenpeck

called Deputy Prosecuting Attorney Mark Lindquist, re-

ported what had happened, and read to him the relevant

provision of the Privacy Act. Pet. App. 8a, 18a; J.A. 178.

Lindquist told Devenpeck that there was “clearly probable

cause” (J.A. 179) to arrest respondent for obstructing an

officer (because of respondent’s evasiveness in responding to

questions and requests), see Wash. Rev. Code Ann.

§ 9A.76.020 (West 2000 & Supp. 2004), for impersonating an

officer (based on the flashing headlights, obscured license

plate, handcuffs, and police radio equipment in the car), see

id. § 9A.60.040, and for violating the Privacy Act. J. A. 177,

180. At booking, respondent also was cited for operating a

vehicle equipped with flashing headlights. J.A. 10, 24. See

generally Wash. Rev. Code Ann. § 46.37.280(3) (West 2001).

A state court later dismissed both the Privacy Act charge

(based on Flora, supra) and the flashing-headlights charge.

J.A. 10, 29.

2. Respondent filed suit in federal district court against

the Washington State Patrol, Haner and Devenpeck, and

others. See Pet. App. 33a. As relevant here, respondent

alleged that Haner and Devenpeck had arrested him without

probable cause in violation of his rights under the Fourth

and Fourteenth Amendments. See 42 U.S.C. 1983. The

defendants moved for summary judgment. The district

court dismissed claims against the State Patrol and the other

individual defendants, but denied Haner and Devenpeck’s

motion to dismiss on qualified immunity grounds. Pet. App.

34a-40a. The court concluded that it was clearly established

in 1997 that the Privacy Act did “not prohibit taping of the

police officers in a situation such as the present one.” Id. at

39a (citing Flora, supra). Because the court determined that

there was “an issue of fact on whether the officers reason-

ably believed their conduct was lawful,” it denied petitioners

summary judgment on the qualified immunity issue. Id. at

40a.

At trial, the district court instructed the jury that, at the

time of the incident, it was clearly established that the state

Privacy Act did not prohibit “tape-record[ing] a police officer

in the performance of an official function on a public thor-

oughfare.” J. A. 190, 202 (citing Flora, supra). The court

instructed the jury to consider whether petitioners had

probable cause to believe that respondent had committed an

offense or reasonably believed that the arrest was lawful.

J.A. 188-189. The jury returned a verdict in favor of peti-

tioners, J.A. 207, and the district court denied respondent’s

motion for a new trial. Pet. App. 25a.

3. A divided panel of the court of appeals reversed. Pet.

App. 5a-17a. The court held that “under clearly established

[state] law, the conduct for which [respondent] was arrested

was not a violation of the Privacy Act,” id. at 10a, and the

court rejected petitioners’ argument that the arrest never-

theless was valid under the Fourth Amendment because

there was probable cause to arrest respondent for other

offenses. Ibid. The court stated that, under Ninth Circuit

law, an arrest on a charge not supported by probable cause is

still valid if there is “[p]robable cause 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.” Ibid. (quoting Gasho v.

United States, 39 F.3d 1420, 1428 n.6 (9th Cir. 1994), cert.

denied, 515 U.S. 1144 (1995)). Applying that test, the court

held that even if there were probable cause to believe that

respondent had impersonated or obstructed a police officer,

that “does not cure the lack of probable cause” because those

offenses “are not closely related to the crime for which [peti-

tioners] arrested [respondent], nor was the conduct required

for impersonation and obstruction similar to the conduct for

which [respondent] was arrested: tape recording a traffic

stop.” Id. at Ila.

The court also rejected petitioners’ claim that they were

entitled to qualified immunity because “a reasonable officer

would have believed [respondent] was violating the state

privacy law.” Pet. App. lla. The court concluded that,

because the Privacy Act prohibited only the recording of a

“private conversation,” and because Flora established that

“a traffic stop was not a private encounter,” id. at 14a, “no

reasonable officer could think that [respondent] had re-

corded a private conversation in violation of the Washington

Privacy Act.” Id. at 15a. The court also rejected the argu-

ment that petitioners were immune because they reasonably

believed that there was probable cause that respondent had

committed other offenses, saying that to accept that argu-

ment “would eviscerate * * * the ‘closely related offense’

doctrine.” Id. at 13a n.2.

Judge Gould dissented. Pet. App. 17a-22a. He wrote that

“(t]he officers * provided an example of how a responsi-

ble and fair-minded officer should proceed deliberately when

— —ͤ bZ—

unfamiliar with the law a person is or may be violating.“ Id.

at 18a. Judge Gould noted that the broad literal text of the

privacy statute,” id. at 20a, supported the arrest, because

“one might say that two officers talking to a suspect alone in

an automobile at roadside on a secluded highway, with no

one else present, were engaged in a ‘private conversation’”

protected by the statute. Id. at 19a. He believed that a jury

could reasonably find that “the officers who read the literal

language of the statute, who were unaware of [the] inter-

mediate appellate court precedent, and who received suppor-

tive advice from the * * * prosecuting attorney, had a

reasonable belief that [respondent’]s conduct violated the

Privacy Act.” Ibid.

SUMMARY OF ARGUMENT

Respondent’s arrest did not violate his Fourth Amend-

ment rights, much less any clearly established right. An

officer may arrest a suspect without a warrant if “the events

leading up to the arrest, * * * viewed from the standpoint

of an objectively reasonable police officer, amount to prob-

able cause.” Maryland v. Pringle, 124 S. Ct. 795, 800 (2003)

(internal quotation marks omitted). Because that inquiry

turns on an objective assessment of the facts rather than the

arresting officers’ subjective understanding, an arrest is con-

stitutionally valid if the officers have probable cause to

arrest the defendant for any offense, even if it is unrelated to

the charge initially articulated by the arresting officer.

The court of appeals held that if a police officer arrests a

suspect on a charge that is later determined to be unfounded,

the arrest is constitutionally invalid unless the officers have

probable cause to believe the defendant committed another

offense that is “closely related” to the articulated basis for

the arrest. That so-called “closely related offense” doctrine

is designed to deter bad-faith arrests, knowingly made

without probable cause, by preventing police from justifying

them with post-hoc rationalizations. But such a rule is

fundamentally inconsistent with the basic principle that

officers’ subjective intentions play no role in probable cause

analysis. Whren v. United States, 517 U.S. 806 (1996). It is

also inconsistent with the principle that an officer’s

subjective legal evaluation of a situation is irrelevant to the

existence of probable cause. Florida v. Royer, 460 U.S. 491,

507 (1983) (plurality opinion); Sibron v. New York, 392 U.S.

40, 66-67 (1968). And it would cause the scope of Fourth

Amendment protections to vary depending on the arresting

officer’s evaluation of circumstances.

The “closely related offense” doctrine also is unworkable

because it fails to provide clear guidance to police. It raises

difficult questions about the manner in which offenses must

be related and how closely related they must be before an

arrest will be upheld, making the test difficult to administer

and apply predictably. It harms the interests of arrestees,

by giving police an incentive to charge every applicable of-

fense to ensure that probable cause exists for at least one of

them, or simply to refrain from specifying the basis for the

arrest. The “closely related offense” doctrine imposes sub-

stantial social costs by requiring the suppression of evidence

resulting from arrests for which there was probable cause,

but does not yield significant benefits because police already

have incentives not to make arrests they believe or know to

be invalid in the hope that a basis later will be found to

support them. The doctrine is poorly tailored to serve its

stated purpose, because it does not deter sham arrests for

which the officer does not state the basis for arrest, while at

the same time invalidating arrests, such as respondent’s,

which are made in good faith based upon probable cause.

Even if the Fourth Amendment incorporated a “closely

related offense” principle, petitioners would be entitled to

qualified immunity on the facts of this case. The evidence at

trial, taken in the light most favorable to petitioners, amply

supported a determination that the officers reasonably

believed respondent had violated state law by impersonating

a police officer and obstructing police, and that those of-

fenses justified arrest. Morever, at the time of arrest, the

Ninth Circuit had not clearly established the contours of the

“closely related” offense doctrine in a way that made clear

that this arrest was unlawful. In particular, the Ninth Cir-

cuit had not had occasion to consider whether an arrest for

behavior occurring during a police investigation was “closely

related” to the underlying conduct that precipitated the

investigation, an issue that had divided the courts of appeals.

Moreover, although the Ninth Circuit had adopted the

“closely related offense” doctrine, other courts, including the

Washington Supreme Court, had held that an arrest is valid

so long as there is probable cause to believe the suspect had

committed any offense. “If judges thus disagree on a con-

stitutional 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, 618 (1999).

ARGUMENT

RESPONDENT’S ARREST DID NOT VIOLATE THE

FOURTH AMENDMENT, LET ALONE CLEARLY

ESTABLISHED LAW

In evaluating a qualified immunity defense, a court must

undertake two distinct inquiries. Saucier v. Katz, 533 U.S.

194, 200 (2001). The court first must decide whether the

facts state a violation of a constitutional right. In this case,

respondent’s arrest complied with the Fourth Amendment,

and the Court need not reach the second question. But in

the event the Court finds the conduct violated the Consti-

tution, it must then decide whether that right was clearly

established “under settled law,” Hunter v. Bryant, 502 U.S.

224, 228 (1991) (per curiam), such that “it would be clear to a

reasonable officer that his conduct was unlawful in the situa-

tion he confronted.” Saucier, 533 U.S. at 202. Respondent’s

effort to obtain money damages fails in this latter respect as

well.

I. AN ARREST ON A CHARGE THAT IS LATER

FOUND TO BE INVALID IS STILL LAWFUL IF THE

POLICE HAD PROBABLE CAUSE TO ARREST THE

DEFENDANT FOR A DIFFERENT OFFENSE, EVEN

IF THAT OFFENSE IS NOT CLOSELY RELATED

TO THE OFFENSE THAT WAS THE ARTICULATED

BASIS FOR THE ARREST

The essential requirement of the Fourth Amendment is

that searches and seizures be reasonable. See Illinois v.

Rodriguez, 497 U.S. 177 (1990). A law enforcement officer

may, consistent with the Fourth Amendment, arrest a sus-

pect without a warrant if the officer has probable cause to

believe the suspect has committed an offense. United States

v. Watson, 423 U.S. 411, 418 (1976). “To determine whether

en officer had probable cause to arrest an individual, we

examine the events leading up to the arrest, and then decide

‘whether these historical facts, viewed from the standpoint

of an objectively reasonable police officer, amount to’ prob-

able cause.” Maryland v. Pringle, 124 S. Ct. 795, 800 (2003)

(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

Because the inquiry turns on an objective assessment of the

facts rather than the arresting officers’ subjective under-

standing, an arrest is constitutionally valid if the officers in

fact have probable cause to arrest the suspect for an offense,

even if the arresting officer cites an unrelated offense as the

reason for the arrest. Lee v. Ferraro, 284 F.3d 1188, 1195-

1196 (11th Cir. 2002); United States v. Bookhardt, 277 F.3d

558, 564 (D.C. Cir. 2002); Barna v. City of Perth Amboy, 42

F.3d 809, 819 (3d Cir. 1994). Contrary to the holding of the

court of appeals, there is no Fourth Amendment require-

ment that the offense for which probable cause exists must

be “closely related” to the ground that the officer invokes in

making the arrest.

A. The “Closely Related Offense” Doctrine Conflicts

With Basic Fourth Amendment Principles

This Court has repeatedly held that the validity of a

search or a seizure under the Fourth Amendment “turns on

an objective assessment of the officer’s actions in light of the

facts and circumstances confronting him at the time,” not on

the officer’s subjective state of mind at the time the actions

were taken. Maryland v. Macon, 472 U.S. 463, 470-471

(1985) (quoting Scott v. United States, 436 U.S. 128, 136

(1978)). “With the limited exception of some special needs

and administrative search cases, see Indianapolis v. Ed-

mond, 531 U.S. 32, 45 (2000), ‘we have been unwilling to

entertain Fourth Amendment challenges based on the actual

motivations of individual officers.’” United States v. Knights,

534 U.S. 112, 122 (2001) (quoting Whren v. United States, 517

U.S. 806, 813 (1996)). That principle is responsive to Fourth

Amendment values, because the legality of a search or

seizure ultimately turns on whether the facts known to

officers justify a particular intrusion on privacy interests,

i. e., “the issue is the objective effect of [the officer’s]

actions.” Bond v. United States, 529 U.S. 334, 338 n.2 (2000).

Consistent with that principle, the Court has held in a

variety of contexts that officers’ motivation, intent, and legal

evaluation of circumstances are irrelevant to the inquiry.

Those include the scope of a defendant’s consent to a search,

Florida v. Jimeno, 500 U.S. 248, 250-252 (1991); the scope of

the “plain view” doctrine, Horton v. California, 496 U.S. 128,

138 (1990); the amount of force that may reasonably be used

in making an arrest, Graham v. Connor, 490 U.S. 386, 397-

399 (1989); the scope of a search incident to arrest, United

States v. Robinson, 414 U.S. 218, 236 (1973); the existence of

a Fourth Amendment “seizure,” Macon, 472 U.S. at 470-471;

the reasonableness of efforts to minimize the interception of

conversations not covered by a wiretap order, Scott, 436 U.S.

at 137-138; the reasonableness of an officer’s decision to

board a vessel for document inspection, United States v.

Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983); the dura-

tion of a traffic stop, Ohio v. Robinette, 519 U.S. 33, 38-39

(1996); and, significantly here, the basis for a probable-cause

traffic stop, Whren, 517 U.S. at 813. Accord Terry v. Ohio,

392 U.S. 1, 21-22 (1968) (in analyzing the reasonableness of a

search or seizure, “it is imperative that the facts be judged

against an objective standard; would the facts available to

the officer at the moment of the seizure * * * ‘warrant a

man of reasonable caution in the belief’ that the action taken

was appropriate?”). The Fourth Amendment’s focus on

objective circumstances promotes important interests in

“evenhanded law enforcement,” Horton, 496 U.S. at 138, by

ensuring that its protections do not “vary from place to place

and from time to time.” Whren, 517 U.S. at 815. The

“closely related offense” doctrine departs from that bedrock

Fourth Amendment rule by seeking to combat perceived

bad-faith conduct even if it was objectively justified and by

ascribing significance to officers’ understanding of the law.

1. The courts that have adopted the “closely related

offense” doctrine have stated that it is designed to prevent

officers from “justify[ing] what from the outset may have

been actually sham or fraudulent arrests on the basis of ex

post facto justifications that turn out to be valid.” Vance v.

Nunnery, 137 F.3d 270, 275 (5th Cir. 1998); accord Sheehy

v. Town of Plymouth, 191 F.3d 15, 20 (Ist Cir. 1999);

Richardson v. Bonds, 860 F.2d 1427, 1431 (7th Cir. 1988).

But that rationale is fundamentally inconsistent with the

basic principle that s jlubjeetive intentions play no role in

ordinary probable-cause Fourth Amendment analysis.”

Whren, 517 U.S. at 813. In Whren, this Court held that

police officers’ subjective motivation for stopping a car was

irrelevant so long as the traffic stop was supported by

probable cause to believe the driver had violated the traffic

laws. The Court unanimously rejected the view that “an

ulterior motive might serve to strip the agents of their legal

justification” if probable cause supported their actions. Id.

at 812. The Court observed that “the fact that the officer

does not have the state of mind which is 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.” Ibid.

(quoting Scott, 436 U.S. at 138). Accord Arkansas v. Sul-

livan, 532 U.S. 769, 771 (2001) (per curiam) (extending

Whren’s holding to custodial arrests). By the same principle,

it is irrelevant whether an arresting officer subjectively in-

tended to conduct a fraudulent or sham arrest. Because the

legality of an arrest turns on whether “the objective effect of

the officer’s] actions” was justified by the facts known to the

officers, Bond, 529 U.S. at 338 n.2, the officer’s subjective

intent or bad faith is irrelevant.

The “closely related offense” doctrine does not escape its

focus on subjective motivation because its application de-

pends in part on an “objective” fact—the arresting officer’s

statement of the charge supporting the arrest. In Whren,

the defendants similarly argued that the validity of a traffic

stop should depend on the ostensibly “objective” inquiry into

whether “the officer’s conduct deviated materially from

usual police practices, so that a reasonable officer in the

same circumstances would not have made the [traffic] stop

for the reasons given.” 517 U.S. at 814. The Court rejected

that proposal, in part because “although framed in empirical

terms, this approach is plainly and indisputably driven by

subjective considerations” because “it is designed to combat

nothing other than the perceived ‘danger’ of the pretextual

stop.” Ibid. The same logic applies here as well. The

“closely related offense” doctrine is, like the standard offered

by the defendants in Whren, an “attempt to root out [a]

subjective vieel] through objective means.” bid. The

officers’ stated basis for the arrest is relevant only because it

provides a point of comparison for offenses later identified to

justify the arrest, and the comparison is thought relevant

only because the lack of a close relationship between the

offenses gives rise to a presumption that the arrest was a

sham, undertaken with knowledge that probable cause was

lacking. Such indirect means of ferreting out a presumed

nefarious subjective intent is contrary to the governing

principle that objective facts, not the officer’s state of mind,

control the validity of the arrest. See United States v. Reed,

349 F.3d 457, 468 (7th Cir. 2003) (Easterbrook, J., dissenting)

(“making [the validity of an arrest] turn on relations among

offenses [is] hard to reconcile with the Supreme Court’s

objective approach”).

2. The “closely related offense” doctrine is also imper-

missibly subjective because it holds that the validity of an

arrest turns on the arresting officer’s subjective legal

evaluation of the crimes for which probable cause exists. In

Florida v. Royer, 460 U.S. 491 (1983), the Court held that

police officers at an airport had illegally detained a traveler,

thus vitiating his purported consent to the search of his

luggage. Id. at 507-508; id. at 509 (Brennan, J., concurring in

the result). A plurality of the Court concluded that the

officers’ restrictions on the suspect’s movement were tanta-

mount to arrest, id. at 503, and rejected the State’s argu-

ment that the arrest was supported by probable cause. /d.

at 507-508. But the plurality took care to note that “the 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.” Id. at 507. Thus, an

arrest objectively supported by probable cause may be law-

ful despite the arresting officer’s belief that probable cause is

lacking. Cf. Sibron v. New York, 392 U.S. 40, 66-67 (1968)

(upholding search as incident to lawful arrest, even though it

was initially justified as a stop-and-frisk).”

In keeping with Royer, the federal courts of appeals have

consistently held that an arresting officer’s subjective belief

that he did not have probable cause for an arrest or search is

irrelevant to probable cause analysis. It would be anoma-

lous if an arrest that in fact was supported by probable cause

were valid although officers mistakenly believed they lacked

probable cause, but the same arrest would be invalid if

officers correctly believed they had probable cause but were

mistaken about the grounds for it. There is no basis for

concluding that “an erroneous legal characterization by a

policeman somehow makes his conduct illegal even though

but for that mistake the officer would likely have proceeded

2 A number of courts of appeals have reached similar results. See, e. g.,

United States v. Cervantes, 19 F.3d 1151, 1153-1154 (7th Cir. 1994) (Pos-

ner, J.) (where police claimed search of car was incident to arrest of driver

on weapons charge but probable cause for that charge was later found to

be lacking, upholding the search because there was probable cause that

the car contained drug proceeds); United States v. Bowman, 907 F.2d 63,

65 (8th Cir. 1990) (“The fact the agents thought they were making an

investigatory stop did not foreclose the government from proving prob-

able cause.”); United States v. Roy, 869 F.2d 1427, 1432-1433 (11th Cir.)

(holding that search performed as warrantless safety inspection was con-

stitutionally valid because probable cause existed that evidence of crime

would be found), cert. der J, 493 U.S. 818 (1989).

3 See, ¢.g., United States v. $557,933.89 in U.S. Funds, 287 F. Ad 66, 85

(2d Cir. 2002) (“a search or seizure may be upheld if the facts known to the

officer support the requisite level of suspicion even if the officer does not

subjectively believe them so to do”); United States v. Santana-Garcia, 264

F.3d 1188, 1192 (10th Cir. 2001); United States v. Anderson, 923 F. 2d 450,

457 (6th Cir. 1991), cert. denied, 499 U.S. 980 and 500 U.S. 936 (1991).

to the alternative correct legal characterization.” 1 Wayne

R. LaFave, Search and Seizure § 1.4(d), at 114 (3d ed. 1996).

B. The “Closely Related Offense” Doctrine Is Difficult

To Administer And Yields Disparate Results

In “implementing [the Fourth Amendment’s] command of

reasonableness,” this Court has emphasized the “essential

interest” in adopting “readily administrable rules” that are

“sufficiently clear and simple to be applied with a fair

prospect of surviving judicial second-guessing months and

years after an arrest or search is made.” Atwater v. City of

Lago Vista, 532 U.S. 318, 347 (2001). “Often enough, the

Fourth Amendment has to be applied on the spur (and in

the heat) of the moment,” and thus “a responsible Fourth

Amendment balance is not well served by standards requir-

ing sensitive, case-by-case determinations.” Jbid. The

“closely related offense” doctrine fails this basic require-

ment. It is inherently difficult to administer, incapable of

predictable application, and has produced widely varying

results.

The “closely related offense” doctrine does not specify the

manner in which offenses must be related: it is unclear

whether the principal focus is the factual relatedness of the

conduct supporting the offenses, the legal similarity of the

statutory prohibitions defining the offenses, or both.“ Nor

Compare Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir.

2002) (doctrine applies if “the charge can reasonably be based on the same

set of facts that gla)ve rise to the arrest” and alternative charge “would

have recommended itself to a reasonable police officer acting in good faith

at the time the arrest was made”); Sheehy v. Town of Plymouth, 191 F.3d

15, 19-20 (Ist Cir. 1999) (the two crimes must “relate to the same conduct”

and “share similar elements or be directed generally at prohibiting the

same type of conduct”); Avery v. King, 110 F 3d 12, 14 (6th Cir. 1997) (test

satisfied if the offenses are “in some fashion related”); United States v.

Atkinson, 450 F.2d 835, 838 (5th Cir. 1971) (same), cert. denied, 406 U.S.

923 (1972).

—

— — —

does the test specify how “closely” related the offenses must

be. Although most courts that have adopted the doctrine

have said that offenses are “closely related” if they arise out

of the “same conduct,” Gasho v. United States, 39 F.3d 1420,

1428 n.6 (9th Cir. 1994), cert. denied, 515 U.S. 1144 (1995),

that test leaves questions of how expansively to define the

relevant “conduct”—whether it includes only the specific

conduct that was the immediate basis for arrest (here,

respondent’s recording of the conversation with the officers),

or whether it includes the entire course of conduct culminat-

ing in arrest (here, respondent’s suspicious conduct with the

disabled motorist, his apparently feigned effort to activate

the “wig wag” lights and evasive responses to inquiries, and

his recording of the conversations). Tellingly, this Court has

rejected both “closely related” offense and “same conduct”

tests in the context of other constitutional rights on the

grounds that they were unworkable. See Texas v. Cobb, 532

U.S. 162, 173-174 (2001) (rejecting as “difficult to administer”

test that would prohibit officers from discussing with a

suspect offenses “closely related to” offenses for which the

right to counsel had attached); United States v. Dixon, 509

U.S. 688, 710 (1993) (overruling “same conduct” test for

Double Jeopardy Clause, in part because it had been a con-

tinuing source of confusion”); id. at 711 & n.16.

Some court of appeals decisions have required a near-

identity between the elements of the crimes to establish

relatedness, and demanded that the crime arise from the

same discrete act of the defendant supporting the initial

charge.” Other decisions have concluded that crimes are

5 See, e., Sheehy v. Town of Plymouth, 191 F.3d 15, 19-20 (Ist Cir.

1999) (holding that “assault and battery” charge that officer was inves-

tigating at the time of defendant’s allegedly disorderly conduct wag not

“related to” disorderly conduct; “the two crimes must share similar

elements or be directed generally at prohibiting the same type of conduct”

and “the crime with which the arrestee is charged and the crime offered to

related if they arise from the same general course of con-

duet.“ Still other decisions define “relatedness” so broadly

that the test is met so long as the later-offered charges are

not so “extravagant or novel” that they transparently reflect

a post-hoc scouring of the criminal code for an offense that

fits the suspect’s conduct.’ Unsurprisingly, then, application

of the “closely related offense” doctrine has led to disparate

results.

The complexity inherent in the rule under mines important

interests in certainty and uniformity. The Fourth Amend-

ment test that is applied in jurisdictions that have rejected

the court as a justification for the arrest must relate to the same con-

duct”).

See, eg., Biddle v. Martin, 992 F.2d 673, 676-677 (7th Cir. 1993)

(holding that the charge of “allowing another [person] to operate [the

owner's] van in a manner contrary to law” was closely related to ob-

structing a police officer” where the officer was investigating the traffic

offense at the time of defendant’s allegedly obstructive conduct); Pfann-

stiel v. City of Marion, 918 F.2d 1178, 1181, 1183 (5th Cir. 1990) (holding

that “trespass” and “disorderly conduct” offenses were related where

officer was investigating the trespass at the time of the defendant’s dis-

orderly conduct); United States v. Atkinson, 450 F.2d 835, 838 (5th Cir.

1971) (holding that the crime of obtaining property or services by false

pretenses was related to the offense of operating an automobile with an

improper tag, where the false license plate suggested defendant’s fraudu-

lent intent), cert. denied, 406 U.S. 923 (1972).

* Richardson, 860 F.2d at 1431 (finding offenses related As lince a

reasonable police officer would have known of both offenses at issue”).

Compare, e. g., Sheehy, 191 F.3d at 20 (holding that assault charge

that officer was investigating ai the time of allegedly disorderly conduct

was not “related to” disorderly conduct), with Biddle, 992 F.2d at 676-677

(holding that traffic offense was closely related to obstruction offense

where the officer was investigating the traffic offense at the time of the

allegedly obstructive conduct); Pfannstiel, 918 F.2d at 1181, 1183 (holding

that “trespass” and “disorderly conduct” offenses were related where offi-

cer was investigating the trespass at the time of the defendant's

disorderly conduct).

the “closely related offense” doctrine is quite straight-

forward: an arrest is valid so long as the facts known to the

officer at the time of arrest are sufficient to support the

finding of probable cause for an offense. By contrast, in

jur.sdietions that follow the “closely related offense” doc-

trine, courts must determine whether alternative offenses

are “closely related” to the original charge under tests that

defy easy analysis. That complexity serves no valid Fourth

Amendment purpose.

C. The “Closely Related Offense” Doctrine Harms The

Interests Of Arrestees

The “closely related offense” doctrine gives law-enforce-

ment officers incentives to modify their behavior in ways

that are harmful to potential arrestees in order to avoid the

invalidation of arrests and to protect themselves from civil

liability. First, it “create[s] an incentive for the police ‘to

routinely charge every citizen taken into custody with every

offense’ they can think of, ‘in order to increase the chances

that at least one charge would survive” and be supported by

probable cause. Bookhardt, 277 F.3d at 566 (quoting United

States v. Atkinson, 450 F. 2d 835, 838 (5th Cir. 1971), cert. de-

nied, 406 U.S. 923 (1972)). A practice of routine overcharg-

ing would be needlessly intimidating to arrestees and point-

lessly lengthen their arrest records.

Second, the “closely related offense” doctrine gives offi-

cers an incentive to “simply remain silent as to the basis for

the arrest,” Richardson, 860 F.2d at 1430, and to wait until

the defendant’s initial appearance before a magistrate to

notify the arrestee about te basis for the arrest. At that

point, the officer typically would have the assistance of a

prosecutor in drafting a charging document. The Fourth

Amendment regulates seizures, not charging decisions.

Thus, officers are under no constitutional obligation to

inform those who have been arrested of the reason for their

arrest. See, e.g., Calusinski v. Kruger, 24 F.3d 931, 936 n.6

(7th Cir. 1994) (“at the time of arrest an arrestee does not

have a Fourth Amendment or Sixth Amendment right to be

informed of the reason for the arrest”); Williams v. Schario,

93 F.3d 527, 529 (8th Cir. 1996) (per curiam) (same); see

generally 3 Wayne R. LaFave, Search and Seizure § 5.1(e),

at 15 n.197 (3d ed. Supp. 2004). Many jurisdictions (including

both Washington and the federal government) do not require

officers making warrantless arrests to inform arrestees of

the basis for arrest. But see, e.g., Tenn. Code Ann. § 40-7-

106 (2003); S.D. Codified Laws § 23A- 3-4 (Michie 1998). A

routine practice of officers remaining silent about the reason

for an arrest would not benefit arrestees, because it is in

their interest to be informed at the time of arrest about the

charges against them both to decrease anxiety and to help

them decide how to exercise their rights.”

D. The “Closely Related Offense” Doctrine Cannot Be

Justified As A Deterrent To Sham Or Fraudulent

Arrests

The-“closely related offense” doctrine potentially imposes

substantial social costs without offsetting benefits to the

protection of constitutional rights. Under the doctrine, an

arrest is unlawful if a police officer relies on a charge for

which probable cause is later found to be lacking, even if the

A suspect need not be informed about all possible subjects of ques-

tioning in order for the suspect to make a voluntary, knowing, and intelli-

gent waiver of his Fifth Amendment privilege. Colorado v. Spring, 479

U.S. 564, 577 (1987). But as a practical matter, some courts have said that

“keeping a suspect informed of the * * * status of the charges *

should be encouraged rather than discouraged.” United States v. Allen,

247 F.3d 741, 765 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953

(2002), and cert. denied, 539 U.S. 916 (2003); accord United States v.

Crisco, 725 F.2d 1228, 1232 (9th Cir.) (information about charges “contri-

butels] to an intelligent exercise of [an arrestee's] judgment”), cert.

denied, 466 U.S. 977 (1984).

facts known to the officer established probable cause to

believe the person arrested had committed another offense.

Although a finding that an arrest is unlawful does not in

itself preclude prosecution of the arrestee, it would ordinar-

ily deprive the government of the use at trial of all evidence

found to be the fruit of that unlawful arrest, including the

defendant’s own statements and any physical evidence that -

resulted from the arrest. See, e.g., Brown v. Illinois, 422

U.S. 590 (1975). While in some instances the government

might nevertheless be able to use the evidence if it could

demonstrate that the effect of the illegal arrest was suffi-

ciently attenuated, see id. at 603-604, or establish an excep-

tion to the exclusionary rule, see, e.g., Murray v. United

States, 487 U.S. 533, 537, 539 (1988); Nix v. Williams, 467

U.S. 431, 443 (1984), in many instances, the evidence would

be inadmissible. The exclusion of such evidence damages the

truth-seeking function of trials and creates a serious risk of

permitting guilty defendants to go free, undermining

“society’s compelling interest in finding, convicting, and pun-

ishing those who violate the law.” Texas v. Cobb, 532 U.S. at

172.

The need to deter sham or fraudulent arrests does not

justify that substantial cost. To begin with, the conduct that

the “closely related offense” doctrine is designed to protect

against is unlikely to occur. As the author of a leading

Fourth Amendment treatise explained:

Suppression for police reliance on the wrong theory even

when there exists an alternative valid theory would

prevent unconstitutional [action] only if, absent such an

extension of the exclusionary rule, it may be assumed

police will conduct arrests and searches on grounds they

know or suspect to be insufficient in the hope that their

actions will later be upheld on some other grounds of

which they are presently unaware. That assumption, in

my judgment, is fanciful.

1 LaFave, supra, § 1.4(d), at 114. There is no basis to believe

that police officers will proceed with an arrest although they

know probable cause to be lacking based on the speculative

possibility that a prosecutor later will be able to discern

probable cause for an offense that eluded them. Cf. Nix v.

Williams, 467 U.S. at 445 (“A police officer who is faced with -

the opportunity to obtain evidence illegally will rarely, if

ever, be in a position to calculate whether the evidence

sought would inevitably be discovered.”). Thus, the prospect

of the suppression of all evidence resulting from an arrest, as

well as “the possibility of departmental discipline and civil

liability,” id. at 446, provide investigators strong incentives,

even without the “closely related offense” doctrine, to

refrain from arresting persons on grounds they know or

suspect to be insufficient. -

Even if the “closely related offense” doctrine could be

justified as a measure to deter sham arrests, it is poorly

tailored to accomplish that goal. To begin with, it provides

no deterrence against sham arrests in which the officer does

not articulate the reason for arrest. In such a case, there is

no basis for saying that the charges ultimately filed against

the defendant are insufficiently related to the initial charge.

The rule also sweeps far more broadly than is warranted

by its deterrence rationale, invalidating not only arrests

made in bad faith without probable cause, but also arrests

made in good faith and amply supported by probable cause.

It is incorrect to conclude that an officer who arrests a

defendant for an offense that later is discovered to be invalid

was acting in bad faith, whenever the alternative grounds

that objectively support the arrest are not “closely related”

to the offense originally charged. “A policeman on the scene

cannot be expected to assay the evidence with the technical

— — — —— — ——ĩ

precision of a prosecutor drawing an information.” Washing-

ton Mobilization Comm. v. Cullinane, 566 F.2d 107, 123

(D.C. Cir. 1977). Thus, in determining what offense to

charge, “it is inevitable that law enforcement officials will in

some cases * * * mistakenly conclude that probable cause

is present.” Anderson v. Creighton, 483 U.S. 635, 641 (1987);

ef. Illinois v. Gates, 462 U.S. 213, 234 (1983) (noting that

“nonlawyers in the midst and haste of a criminal investiga-

tion” will make mistakes). In addition, because criminal

conduct is often still under investigation at the time of

arrest, it will often be difficult or impossible to know with

precision what crime has been committed. See, eg., 3

LaFave, supra, § 5.2(c), at 75 (8d ed. 1996). Faced with a

menu of conceivable offenses, well intentioned officers may

in good faith select one for which probable cause is lacking.

Because strong disincentives already exist for misbehavior,

the “closely related offense” doctrine is likely to invalidate

more good-faith arrests than sham or fraudulent ones.

This case illustrates the point. There is no suggestion that

petitioners’ arrest of respondent was a sham or fraud or that

petitioners intentionally arrested someone they knew to be

innocent of any offense. As Judge Gould observed, “[tJhe

officers did not arrest [respondent] on a rogue mission, nor

motivated by malice, nor on a whim.” Pet. App. 18a. Indeed,

the majority acknowledged petitioners’ “good faith.” Id. at

13a. Nor is there any indication that the alternative bases

offered reflect “ex post facto extrapolation” to justify the

arrest. As respondent notes (Br. in Opp. 2), Haner followed

and stopped respondent’s car because he suspected respon-

dent of unlawfully impersonating a police officer, and that

was the initial focus of the officers’ inquiries after the stop.

Pet. App. 6a-7a, 30-3la. When the officers contacted the

prosecutor shortly after arresting respondent, they dis-

cussed with the prosecutor the existence of probable cause

not only for a Privacy Act violation but for police-imper-

sonation and obstruction offenses as well. J.A. 177, 180.

Indeed, petitioners cited respondent for unlawfully operat-

ing a vehicle with flashing headlights. J.A. 10, 24.

Il. THE OFFICERS ARE ENTITLED TO QUALIFIED

IMMUNITY

Qualified immunity shields a police officer from suit for

damages if “a reasonable officer could have believed [the

arrest] to be lawful, in light of clearly established law and

the information the [arresting] officers possessed.” Hunter,

502 U.S. at 227 (quoting Anderson, 483 U.S. at 641). “Even

law enforcement officials who ‘reasonably but mistakenly

conclude that probable cause is present’ are entitled to im-

munity.” Jbid. Taken in the light most favorable to peti-

tioners, the evidence presented at trial amply supports a

determination that petitioners reasonably believed they had

probable cause that respondent had committed an offense.

In light of that evidence and the clear split of authority about

the validity and contours of the “closely related offense” doc-

trine, respondent’s arrest did not violate clearly established

law.

To begin with, there was ample evidence that respondent

had impersonated a police officer in violation of Wash. Rev.

Code Ann. § 9A.60.040 (West 2000 & Supp. 2004). Respon-

dent had pulled in behind a disabled vehicle on a dark and

secluded stretch of highway, turned on his flashing head-

lights, left quickly when a state trooper arrived, falsely told

Haner that he had worked in law enforcement (J.A. 106),

tried to obscure his license plate, and had a police radio,

police scanner, and handcuffs. Pet. App. 6a-7a; id. at 17a

(Gould, J., dissenting) (respondent’s conduct was “ominous to

say the least”). There likewise was probable cause to believe

respondent had obstructed a law enforcement officer in

violation of Wash. Rev. Code Ann. § 9A.76.020 (West 2000 &

Supp. 2004). Respondent falsely said that he had worked in

law enforcement, that he had been given permission to “use

[flashing headlights] as long as he wasn’t impersonating [an

officer],” J. A. 134, and that the lights were part of his alarm

system, and he pressed various buttons on his keychain and

dashboard in a purported effort to activate the lights, while

making an apparently conscious effort not to press a par-

ticular switch on the steering column that later was found to

activate the flashing headlights. Respondent’s evasive state-

ments and conduct themselves indicate consciousness of

guilt. United States v. Ortiz, 422 U.S. 891, 897 (1975). The

reasonableness of petitioners’ conclusion is underscored by

the fact that Devenpeck conferred with a prosecuting attor-

ney while respondent was in transit to jail. Cf., e.g., Kijonka

v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (Posner, J.)

(“Consulting a prosecutor * * * goes far to establish

qualified immunity.)

The officers could reasonably have believed that the

arrest of respondent was valid if they had probable cause to

believe respondent had committed any offense and not

simply the Privacy Act violation. The Ninth Circuit had not

clearly established that the “closely related offense” doctrine

would render this arrest unlawful. While the Ninth Circuit

10 In addition, there was ample evidence that the officers reasonably

believed that respondent violated the state Privacy Act when he recorded

his conversation with the officers. As Judge Gould noted in dissent, the

“broad literal text of the privacy statute,” Pet. App. 20a, which makes it

unlawful for “any individual * * to * * record any * * [pjrivate

conversation without first obtaining the consent of all the persons

engaged in the conversation,” Wash. Rev. Code Ann. § 9.73.030(1)(b)

(West 2003), facially applied to the officers’ conversation at the roadside

with respondent. Petitioners acted with reasonable care by reading the

relevant statute at the scene, and their ignorance of Flora—a decision of

the intermediate court of appeals for another division of the state that was

not binding on the court of appeals where the arrest occurred, see Pet.

App. 20a n.3; see generally Eriksen v. Mobay Corp., 41 P.3d 488, 495

(Wash. Ct. App. 2002)—did not render the arrest unreasonable.

previously had stated in a footnote that Iplrobable 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, 39 F.3d at 1428 n.6, the court did so in the

context of two nearly identical crimes (removal of property

nder the control of the Customs Service and removal of

seized property), and so had no occasion to elaborate on the

contours of the “closely related offense” doctrine. Thus, it

was not clear at the time of the arrest whether the Ninth

Circuit would take a narrow view of that doctrine instead of

the more expansive interpretation embraced by other

courts, which the additional offenses at issue in this case

would satisfy. Compare, e.g., Biddie v. Martin, 992 F.2d 673,

676-677 (7th Cir. 1993) (holding additional offenses proffered

by officers to be within “closely related offense” doctrine be-

cause they were “neither ‘novel’ nor ‘extravagant’”); Pfann-

stiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990);

Atkinson, 450 F. 2d at 838.

In particular, the Ninth Circuit had not had occasion to

consider whether an arrest for behavior occurring after a

traffic stop was “closely related” to the conduct that precipi-

tated the stop, even if the crimes have different elements.

Courts of appeals have reached differing conclusions on the

related question of whether disorderly conduct or ob-

struction charges arising from behavior occurring during

police investigation of an offense is “closely related” to the

underlying offense, see n.8, supra, indicating that the issue is

a difficult one. Ninth Circuit law on that issue was not

clearly established at the time of the arrest.

Even if the Ninth Circuit case law had been clear, it would

not have made the relevant law sufficiently clear to deny

qualified immunity because the Washington state court.

take a different view. It has long been the rule in Wash-

ington state courts that an arrest is valid although the

charge stated by police is later determined to be unfounded

if there was probable cause at the time of the arrest to

believe the defendant had committed other offenses. E. g.,

State v. Vangen, 433 P.2d 691, 694 (Wash. 1967); State v.

Huff, 826 P.2d 698, 700 (Wash. Ct. App.) (collecting authori-

ties), review denied, 833 P.2d 387 (Wash. 1992). See also 1

LaFave, supra, § 1.4(d), at 112 (noting broader conflict

among courts of appeals, and stating that the position that

police reliance on an incorrect theory affects the validity of

the arrest “appears to be a minority view”).

The conflict between Washington state courts and the

federal appellate court with jurisdiction over Washington

about the interpretation of the Fourth Amendment is the

kind of circumstance that led this Court to grant certiorari in

order to “clearly establish” what the law is. It is not the kind

of circumstance that should lead to liability for an officer who

wrongly predicts how the Court will resolve the conflict. “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, 618

(1999); accord Hanlon v. Berger, 526 U.S. 808, 810 (1999) (per

curiam) (concluding that officers were entitled to qualified

immunity even though Ninth Circuit had anticipated the

Court’s holding that media ride-alongs violate the Fourth

Amendment). There is no basis for “insisting ‘that policemen

act on necessary spurs of the moment with all the knowledge

and acuity of constitutional lawyers.” 1 LaFave, supra,

§ 1.4(d), at 114 (quoting State v. Romeo, 203 A.2d 23, 32 (N. J.

1964), cert. denied, 379 U.S. 970 (1965)).

*_* * &£*

The court of appeals lost sight of controlling principles of

Fourth Amendment and qualified immunity law when it re-

versed the jury verdict exonerating petitioners from liabil-

ity. Regardless of whether respondent had violated the

state Privacy Act, the objective circumstances known to the

officers plainly established probable cause to believe that he

had committed other offenses. No more was necessary to

satisfy the Fourth Amendment’s basic requirement of rea-

sonableness.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JUNE 2004