Amicus Curiae Brief — Devenpeck v. Alford

Supreme Count, Us.

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est a No. 03-710 SUNT!

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

GERALD DEVENPECK AND JOI HANER, Petitioners,

v.

JEROME ANTHONY ALFORD, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF CALIFORNIA AND FIFTEEN OTHER STATES AND THE

COMMOMWEALTH OF PUERTO RICO AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor

ROBERT R. ANDERSON

Chief Assistant Attorney General

MARY JO GRAVES

Senior Assistant Attorney General

JANET E. NEELEY

Supervising Deputy Attorney General

LEE E. SEALE

Deputy Attorney General

PATRICK J. WHALEN

Deputy Attorney General

Counsel of Record

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-2785

Fax: (916) 324-2960

Counsel for Amici States

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QUESTIONS PRESENTED

If an officer has probable cause to arrest a suspect for a

violation of state law, does his mistaken belief that the suspect

has committed another unrelated offense affect the legality of

the arrest under the Fourth Amendment?

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

ALFORD’S ARREST WAS PROPER BECAUSE THE

WASHINGTON PATROL OFFICERS HAD PROBABLE

CAUSE TO BELIEVE THAT ALFORD HAD

CRIMINALLY IMPERSONATED A POLICE OFFICER

CONCLUSION

3

14

TABLE OF AUTHORITIES

Cases

| Alford v. Haner

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

Arkansas v. Sullivan

532 U.S. 769 (2001)

Atwater v. Lago Vista

532 U.S. 318 (2001)

Biddle v. Martin

992 F.2d 673 (7th Cir. 1993)

Burchett v. Kiefer

310 F.3d 937 (6th Cir. 2002)

Fletcher v. Town of Clinton

196 F.3d 41 (Ist Cir. 1999)

Florida v. Royer

460 U.S. 491 (1983)

Gasho v. United States

39 F.3d 1420 (9th Cir. 1994)

Hatcher v. State

410 N.E.2d 1187 (Ind. 1980)

Hicks v. Board of Supervisors

69 Cal.App.3d 228 (Cal. Ct. App. 1977)

Passim

12

11

10, 11

12

iv

TABLE OF AUTHORITIES (continued)

Jones v. City of Jackson

203 F.3d 875 (Sth Cir. 2000)

Kladis v. Brezek

823 F.2d 1014 (7th Cir. 1987)

Maryland v. Macon

472 U.S. 463 (1985)

Maryland v. Pringle

124 S. Ct. 795 (2003)

Mills v. Wainwright

415 F.2d 787 (Sth Cir. 1969)

People v. Corrigan

473 N.E.2d 140 (Ill. App. Ct. 1985)

People v. Rodriguez

53 Cal.App.4th 1250 (Cal. Ct. App. 1997)

Perry v. Jones

506 F.2d 778 (Sth Cir. 1975)

Scott v. United States

436 U.S. 128 (1978)

Sheehy v. Town of Plymouth

191 F.3d 15 (1st Cir. 1999)

State v. Hollis

633 A.2d 1362 (Vt. 1993)

ll

iS |

12

12

12

1]

|

|

|

Vv

TABLE OF AUTHORITIES (continued)

State v. Loh

618 N.W.2d 477 (N.D. 2000)

State v. Reed

879 P.2d 1000 (Wash. Ct. App. 1994)

Thompson v. Keohane

516 U.S. 99 (1995)

United States v. Goeltz

513 F.2d 193 (10th Cir. 1975) 7

United States v. Robinson

414 U.S. 218 (1973)

United States v. Watson

423 US. 411 (1976)

Whren v. United States

517 U.S. 806 (1996)

Williams v. Schario

93 F.3d 527 (8th Cir. 1996)

Wilson v. Layne

526 U.S. 603 (1999)

Constitutional Provisions

United States Constitution

Fourth Amendment

Page

10

6,7

i, 6, 7,9

vi

TABLE OF AUTHORITIES (continued)

Statutes

42 United States Code

§ 1983

Cal. Government Code

§ 26500

ALI Model Code of Pre-Arraignment Procedure,

§ 120.1(2), Commentary at 290-291 (1975)

Del. Code Ann. tit. 11

§ 1905 (1953)

N.H. Rev. Stat. Ann.

§ 594:13 (1986)

R.1. Gen. Laws

§ 12-7-5 (1981)

Wash. Rev. Code

§ 9A.60.040

§ 9A.76.020

§ 10.31.100

Page

11

10

11

11,12

Vii

TABLE OF AUTHORITIES (continued)

Other Authorities

2 W. LaFave, Criminal Procedure § 3.3(b) (2d ed. 1999)

3 W. LaFave, Search and Seizure § 1.4(e)

(3d ed. 1996 and Supp. 2004)

3 W. LaFave, Search and Seizure § 5.1(e)

(3d ed. 1996 and Supp. 2004)

4 W. LaFave, Criminal Procedure § 13.1(a) (2d ed. 1999)

Page

10

10

IN THE SUPREME COURT OF THE UNITED STATES

No. 03-710

GERALD DEVENPECK AND JOI HANER, Petitioners,

v.

JEROME ANTHONY ALFORD, Respondent.

INTEREST OF AMICI CURIAE

The attorneys general of California and fifteen other states,

as well as the Secretary of Justice of the Commonwealth of

Puerto Rico, have a compelling interest in the prosecution of

crime and the protection of citizenry. Those interests are

thwarted when police officers are held civilly liable for lawful

arrests. Accordingly, amici urge this Court to reverse the

decision of the Ninth Circuit Court of Appeals in Alford v.

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

SUMMARY OF ARGUMENT

In Alford, the Ninth Circuit pernitted the mistaken,

subjective beliefs of the arresting officers to invalidate an arrest,

despite the existence of probable cause to believe the suspect

had committed another offense. In denying the officers’ claim

of qualified immunity, the court set out what it referred to as

“the test applied in the Ninth Circuit”: “probable 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.” Alford, 333

F.3d at 976 (original italics). Under this doctrine, if both

offenses are not closely related, the officer’s mistaken belief --

even if made in good faith and supported by the judgment of a

deputy prosecutor, as here -- will expose him to civil suit under

42 U.S.C. § 1983.

No decision of this Court has ever held that an officer’s

subjective belief can invalidate an arrest despite the presence of

probable cause to believe that the suspect committed an

unrelated offense. Indeed, such a doctrine is plainly contrary to

the recent decisions of this Court, which have steadfastly

refused to consider the actual motivations or beliefs of the

arresting officer. No degree of relation is required between the

offense that motivates the officer to arrest and the offense for

which probable cause actually exists. Accordingly, this Court

should extinguish the closely related offense doctrine and

reverse the Ninth Circuit’s finding of liability against the

Washington police officers who properly arrested Alford.

ARGUMENT

ALFORD’S ARREST WAS PROPER BECAUSE

THE WASHINGTON PATROL OFFICERS

HAD PROBABLE CAUSE TO BELIEVE THAT

ALFORD HAD CRIMINALLY

IMPERSONATED A POLICE OFFICER

When Washington State police officers arrested Alford on

the evening of November 22, 1997, they had probable cause to

believe that he was guilty of cr minally impersonating a police

officer, a misdemeanor under Washington law.” Officer Joi

Haner had received a report that Alford had activated wig-wag

lights on his vehicle when pulling up behind a disabled vehicle

on the side of the road, leading the people at the scene to

1. Washington law provides, in pertinent part:

A person is guilty of criminal impersonation in the

second degree if the person:

(a) Claims to be a law enforcement officer or creates

an impression that he or she is a law enforcement

officer; and

(b) Under circumstances not amounting to criminal

impersonation in the first degree, does an act with

intent to convey the impression that he or she is

acting in an official capacity and a reasonable

person would believe the person is a law

enforcement officer.

Wash. Rev. Code § 9A.60.040.

Petitioners also presented evidence at the district court that

probable cause existed to believe that Alford’s evasive, if not

dishonest, answers regarding the activation of his wig-wag lights

constituted criminal obstruction, a misdemeanor. J.A. 107-108, 157;

see Wash. Rev. Code § 9A.76.020.

conclude that he was a police officer. Alford, 333 F.3d at 974-

75; J.A. 34, 96, 97. After pulling him over and noting the law

enforcement trappings inside his car -- a police scanner, a

microphone, a radio broadcasting the dispatches of the local

sheriff s office, and a pair of handcuffs -- Officer Haner became

concerned that Alford was a “wannabe cop,” a conclusion

echoed by Sergeant Devenpeck after he arrived. Alford, 333

F.3d at 974-75; J.A.10, 34-35. When the officers saw that

Alford was secretly tape recording their conversation, they

placed him under arrest. Alford, 333 F.3d at 975; J.A. 36-37,

40-42.

The objective facts clearly establish probable cause for a

reasonable officer to believe that Alford had committed second

degree criminal impersonation. Thus, Officer Haner and

Sergeant Devenpeck could have arrested Alford on this basis.

Atwater v. Lago Vista, 532 U.S. 318, 354 (2001); Wash. Rev.

Code § 10.31.100 [authorizing warrantless arrest for

misdemeanors committed in the presence of the officer].

However, the officers arrested Alford for his supposed violation

of a Washington statute prohibiting private conversations from

being tape recorded.” Alford, 333 F.3d at 975; J.A. 36, 42-43.

2. After the arrest, the officers issued a notice of infraction

to Alford for having unlawful wig-wag lights and wrote in their

reports, under a section heading entitled "charges," that Alford had

made an unlawful tape recording. J.A. 24, 32, 37-38, 43. However,

it cannot be said that Alford was actually charged with making an

unlawful tape recording. Like most states, Washington vests

prosecutorial power with county or state entities, leaving police

officers powerless to charge anything other than minor traffic

offenses. State v. Reed, 879 P.2d 1000, 1002 (Wash. Ct. App. 1994);

see also, e.g., Cal. Gov. Code § 26500; Hicks v. Board of

Supervisors, 69 Cal.App.3d 228, 241 (Cal. Ct. App. 1977) ["no one

may institute criminal proceedings without the concurrence,

approval, or authorization of the district attorney"], 4 W. LaFave,

Criminal Procedure § 13.1(a) (2d ed. 1999).

It is undisputed that Alford did not violate any law by

recording his conversation with the officers. Alford, 333 F.3d

at 974. The officers’ subjective belief regarding the illegality of

the tape recording turned out to be wrong. The Ninth Circuit

believes that this mistake warrants a monetary civil judgment in

Alford’s favor.

However, the Ninth Circuit misunderstands this Court’s

test for probable cause. Alford’s arrest should not be

invalidated on the basis of the officers’ subjective beliefs

regarding the scope of a tape recording statute. The proper

inquiry, as this Court has made clear, is an objective one: “the

objective inquiry [is] whether a reasonable officer could have

believed” that a crime had occurred. Wilson v. Layne, 526 U.S.

603, 615 (1999) [italics added]. The use of the phrase “could

have believed” avoids reference to the arresting officer’s actual

state of mind and instead focuses on the objective presence of

facts. Accordingly, the vantage point is that of an objectively

reasonable officer, not an actual one, as this Court has made

clear: “Whether a Fourth Amendment violation has occurred

‘turns on an objective assessment of the officer’s actions in light

of the facts and circumstances confronting him at the time,’ . . .

and not on the officer’s actual state of mind at the time the

challenged action was taken.” Maryland v. Macon, 472 U.S.

463, 470-71 (1985) (quoting Scott v. United States, 436 U.S.

128, 136 (1978)); see also Maryland v. Pringle, 124 S. Ct. 795,

800 (2003) [“we examine the events leading up to the arrest,

In any event, whether or not Alford was eventually charged

with any particular offense is of no moment because it has no bearing

on the legality of his arrest. Fletcher v. Town of Clinton, 196 F.3d

41, 54 (Ist Cir. 1999); Perry v. Jones, 506 F.2d 778, 780 (Sth Cir.

1975); United States v. Goeltz, 513 F.2d 193, 197 (10th Cir. 1975).

The determination of whether probable cause supports an arrest

cannot be altered by subsequent evidentiary developments or

discretionary choices by prosecutors.

and then decide whether these historical facts, viewed from the

standpoint of an objectively reasonable police officer, amount

to probable cause”]; Thompson v. Keohane, 516 U.S. 99, 112

(1995) [“the court must apply an objective test]. In fact, as a

leading commentator in the field of criminal procedure explains,

“if the objective probable cause test is met it is not also

necessary to establish that the particular officer making the

arrest . . . subjectively believed probable cause was present.” 2

W. LaFave, Criminal Procedure § 3.3(b) (2d ed. 1999).

This Court has made it clear that an arrest will not be

invalidated on the basis of an arresting officer’s subjective

beliefs or actual motivations so long as there are objective facts

amounting to probable cause. For example, in Whren v. United

States, 517 U.S. 806 (1996), squad officers patrolling a “high

drug area” stopped a car after witnessing suspicious behavior by

its occupants. /d. at 808. When an officer approached the car,

he saw two large plastic bags of crack cocaine in the hands of

Whren, the passenger. /d. at 808-09. At trial, Whren

challenged the legality of the stop under the Fourth Amendment.

Id. at 809-10. Whren claimed that even though the officers had

probable cause to stop the car for traffic violations, those

reasons were a pretext for the actual, subjective motivation

behind the stop -- the investigation of drug activity -- for which

the officers lacked probable cause. /d. at 810. Whren asked this

Court to consider the actual motivation behind the traffic stop

and invalidate it if it could be shown to be a pretext.-/d. at 808,

811.

In a unanimous decision, this Court rejected Whren’s

argument, explaining that an officer’s actual motive cannot

invalidate objectively justifiable behavior. Whren, 517 U.S. at

812. “Subjective intentions,” this Court stated, “play no role in

ordinary, probable-cause Fourth Amendment analysis.” /d. at

813. So long as an officer’s action is supported by objective

circumstances, the officer’s “state of mind” is irrelevant.” /d.

Stated another way, “the Fourth Amendment’s concern with

‘reasonableness’ allows certain actions to be taken in certain

circumstances, whatever the subjective intent.” /d. at 814

(original italics). Accordingly, the stop at issue was validated

by the presence of probable cause to support the traffic

violations, regardless of the actual motivations of the officers.

Id. at 819. .

To be sure, Whren involved a traffic stop, but five years

later, in Arkansas v. Sullivan, 532 U.S. 769, 771 (2001), this

Court forcefully reiterated Whren’s holding in the context ov an

arrest. In a per curiam opinion, this Court reversed the

Arkansas Supreme Court’s invalidation of an arrest on the basis

of an officer’s “improper subjective motivation.” Jd. at 772.

Again, this Court disapproved any consideration of the arresting

officer’s “actual motivations” within Fourth Amendment

analysis. “The Arkansas Supreme Court's holding . . . cannot

be squared with our decision in Whren, in which we noted our

‘unwilling[ness] to entertain Fourth Amendment challenges

based on the actual motivations of individual officers,’ and held

unanimously that ‘[s]ubjective intentions play no role in

_. ordinary, probable-cause Fourth Amendment analysis.”” /d. at

771-72.

Thus, an officer’s subjective belief is immaterial to the

determination of probable cause. Indeed, to additionally require

3. The Whren decision did note that inventory searches and

administrative inspections fall outside this rule because both are

conducted in the absence of probable cause. Whren, 517 U.S. at 811-

12. The Court also noted that the selective enforcement of law on the

basis of race, for example, would be an exception to this rule, though

such a claim would be brought under the Equal Protection Clause, not

the Fourth Amendment. /d. at 813. None of these exceptions applies

to the instant case.

an arresting officer to actually hold a subjective view of certain

facts or their legal significance actually creates a two-part

standard requiring both an objective and a subjective standard:

first, certain facts must objectively exist; and, second, the

officer must actually grasp them and their legal significance.

Such a two-part test, with both an objective and subjective

component, contravenes the standard set forth in this Court’s

decisions in Maryland v. Macon, Wilson v. Layne, Maryland v.

Pringle, and Thompson v. Keohane, and it ignores this Court’s

holdings in Whren and Sullivan. Under the rules set out in these

decisions, the objective existence of probable cause to believe

that Alford had committed misdemeanor second-degree

criminal impersonation sufficed to validate his arrest; in

contrast, the officers’ subjective misunderstanding regarding the

legality of the tape recording is immaterial. Regardless of the

officers’ subjective intent, the arrest was reasonable.

Rather than simply asking whether the objective facts of

the case supported probable cause, the Ninth Circuit further

erred by applying the closely related offense doctrine to the facts

of the case, stating that “[p]robable cause may still exist for a

closely related offense, even if that offense was not invoked by

the arresting officer, as long as it involves the same conduct for

which the suspect was arrested.” Alford, 333 F.3d at 976 [italics

in original]. Noting that an impersonation charge would have

been based on conduct unrelated to the mistaken tape recording

charge, the court found that the closely related offense standard

was not met here. /d.

The Ninth Circuit’s closely related offense doctrine finds

no basis in this Court’s jurisprudence. In Alford, the Ninth

Circuit refers to it as “the test applied in the Ninth Circuit” and

cites its own prior decision in support of the doctrine. Alford,

333 F.3d at 976, citing Gasho v. United States, 39 F.3d 1420,

1428 n.6 (9th Cir. 1994). However, Gasho, like other circuit

court decisions citing the closely related offense doctrine,

cannot trace the doctrine to any controlling authority from this

Court.* Indeed, the doctrine is often traced back to the case of

Mills v. Wainwright, 415 F.2d 787, 789-90 (Sth Cir. 1969),

where the Fifth Circuit found the police tactic of arresting a

suspect on a lesser charge for the purpose of investigating his

involvement in an unrelated, more serious offense to be an

“evil” means of discovering evidence, a “sham” and a “fraud.”

Id. at 790. The closely related offense doctrine, explained the

court, served to prevent such “evil” investigatory tactics by

preventing suspects from being arrested on unrelated grounds

for investigatory purposes, even if probable cause otherwise

existed to justify the suspect’s arrest on the unrelated charge.

Id.

The court’s attempt in Mills v. Wainwright to use the

closely related offense doctrine to discern and evaluate the

purpose of an arrest under the Fourth Amendment cannot be

reconciled with this Court’s decisions in Whren or Sullivan.

The arrest in Whren was valid despite the fact that the traffic

violations, for which probable cause existed, were in no way

related to the drug offenses, for which probable cause was

lacking. Likewise, the vehicle code violations in Sullivan, for

which probable cause existed, were in no way related to the

drug offenses, for which probable cause was lacking. Yet the

arrest in Sullivan was also proper under the Fourth Amendment.

In neither decision did the lack of a close relation between the

offenses render the arrest invalid.

That the officers in Whren and Sullivan may have been

motivated to further detain the suspects in order to investigate

drug activity was immaterial. Rather, in these and similar cases,

4. Amici find only a single reference to the doctrine in all of

this Court’s jurisprudence, and that reference is in a dissent that

predates Whren. United States v. Watson, 423 U.S. 411, 435 (1976)

* (Marshall, J., dissenting).

10

this Court has expressly refused to allow the purpose of the

detention to invalidate the detention. See, e.g., United States v.

Robinson, 414 U.S. 218, 221 n.1 (1973) [an arrest will not be

rendered invalid by the fact that it was a mere pretext for a

narcotics search]; see also 3 W. LaFave, Search and Seizure

§ 1.4(e) (3d ed. 1996 and Supp. 2004). In short, if probable

cause exists to arrest a suspect, an investigatory purpose will

not invalidate the arrest.

The Ninth Circuit claims that the closely related offense

doctrine protects against “later extrapolated justifications” for

arrests, something the court suggests occurred in the instant

case. See Alford, 333 F.3d at 976 [“Since they did not have

probable cause to arrest Alford for violating the Privacy Act,

defendants now claim on appeal that they had probable cause to

afrest Alford for offenses other than tape recording .. .”}.

However, it is not exactly clear what is meant by -- or wrong

with -- “later extrapolated justifications.” If the Ninth Circuit

is troubled by the fact that Alford’s arrest can be upheld on

grounds (i.e., an impersonation charge) other than those that

appeared to have actually motivated the officers to take Alford

into custody (i.e., the supposedly illegal tape recording), the

Ninth Circuit’s concerns are unfounded. This Court has

explained that a state may seek to justify an arrest by proving

the existence of probable cause, even where officers

subjectively believed their actions were justified on a different

basis. Florida v. Royer, 460 U.S. 491, 507 (1983); see also 3

W. LaFave, Search and Seizure § 5.1(e) (3d ed. 1996 and Supp.

2004) [“Indeed, arrests are not infrequently upheld on bases

other than asserted by police at the suppression hearing.”}. If

objective facts amount to probable cause, the arrest is proper

regardless of the reason cited by the officer.

In fact, several states have statutes that expressly uphold an

arrest regardless of the reason cited by the officer. See, e.g.,

Del. Code Ann. tit. 11, § 1905 (1953) [“If a lawful cause of

arrest exists, the arrest is lawful even though the officer charges

the wrong offense or gives a reason that does not justify the

arrest’’]; N.H. Rev. Stat. Ann. § 594:13 (1986) [same]; R.I. Gen.

Laws § 12-7-5 (1981) [“If a lawful cause of arrest exists, the

arrest shall be lawful even though the officer made the arrest on

an improper ground”’]. In other states, courts have reached the

same conclusion. See, e.g., State v. Loh, 618 N.W.2d 477, 479

(N.D. 2000) [if arrest is properly supported by probable cause

for a certain offense, the arrest is not vitiated by the officer’s

subjective reliance on an offense for which there is no probable

cause]; State v. Hollis, 633 A.2d 1362, 1365 (Vt. 1993) [“when

an Officer's arrest is properly supported by probable cause to

arrest for a particular offense, neither the officer’s subjective

reliance on an offense for which there is no probable cause, nor

the officer’s verbal announcement of the wrong offense, vitiates

the arrest”’].

In contrast to the closely related offense doctrine, which

focuses on the reason cited by the arresting officer, these

statutes and cases provide a basis for prosecutors to justify an

arrest “by proving the existence of probable cause, even where

officers subjectively believed their actions were justified on a

different basis.” Royer, 460 U.S. at 507. Because they correctly

determine probable cause based on objective facts rather than

the articulations or beliefs of the arresting officer, these statutes

and cases conform to the decisions of this Court and find

support from distinguished commentators. See, e.g., ALI Model

Code of Pre-Arraignment Procedure, § 120.1(2), Commentary

at 290-291 (1975) [“An arrest shall not be deemed to have been

made on insufficient cause hereunder solely on the ground that

the officer is unable to determine the particular crime which

may have been committed”]. Indeed, it makes little sense to

hold officers liable for citing the wrong reason in support of an

arrest when there is no constitutional right te be informed of the

reason for arrest in the first place. Burchett v. Kiefer, 310 F.3d

937, 947 (6th Cir. 2002); Jones v. City of Jackson, 203 F.3d

12

875, 880 (Sth Cir. 2000); Williams v. Schario, 93 F.3d 527, 529

(8th Cir. 1996); Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir.

1987).

However, despite their conformity to this Court’s

jurisprudence, these state court statutes and decisions do not

insulate state police officers from civil liability imposed by

federal circuit courts applying the closely related offense

doctrine. Compare, e.g., Hatcher v. State, 410 N.E.2d 1187,

1189-90 (Ind. 1980) [properly concluding that probable cause

is determined from the vantage point of a hypothetical officer

and that an officer’s actual reason for the arrest is immaterial]

and People v. Corrigan, 473 N.E.2d 140, 143 (Ill. App. Ct.

1985) [“when an officer makes an arrest which is properly

supported by probable cause to arrest for a certain offense

neither his subjective reliance on an offerise for which there is

no probable cause, nor his verbal announcement of the wrong

offense vitiates the arrest’’] with Biddle v. Martin, 992 F.2d 673,

676 (7th Cir. 1993) [applying the closely related offense

doctrine]; compare R.1. Gen. Laws § 12-7-5 (1981) with Sheehy

v. Town of Plymouth, 191 F.3d 15, 19-20 (1st Cir. 1999)

[applying the closely related offense doctrine]; compare People

v. Rodriguez, 53 Cal.App.4th 1250, 1266-67 (Cal. Ct. App.

1997) [“the test is not whether a reasonable officer would have

made the arrest for the reasons given”] with Alford, 333 F.3d at

976. Washington is not alone in its concern that its police

officers face unjustified lawsuits. This Court should extinguish

the closely related offense doctrine so that state police officers

will no longer face civil liability for making lawful arrests.

In this case, the Washington police officers acted

reasonably and in good faith. They had probable cause to

believe that Alford was guilty of second degree criminal

impersonation. The lack of a close relationship between the

impersonation offense and the supposed tape recording offense

should not invalidate the arrest. This Court should extinguish

13

the closely related offense doctrine and reverse the decision of

the Ninth Circuit.

<mor

14

CONCLUSION

For the foregoing reasons, amici respectfully request that

this Court reverse the decision of the Ninth Circuit below.

LES:ky

Dated: June 17, 2004

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor

ROBERT R. ANDERSON

Chief Assistant Attorney General

MARY JO GRAVES

Senior Assistant Attorney General

JANET E. NEELEY

Supervising Deputy Attorney General

LEE E. SE

Deputy Attofney General

‘py

PATRICK J. WHALEN

Deputy Attorney General

Counsel of Record

Counsel for Amici States