Amicus Curiae Brief — Devenpeck v. Alford

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FILED

S J} JUN 17 2004

No. 03-710 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

GERALD DEVENPECK, ET AL.

Petitioners,

JEROME ANTHONY ALFORD,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF THE CENTER FOR THE

COMMUNITY INTEREST AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

MIGUEL A. ESTRADA

Counsel of Record

THOMAS H. DUPREE, JR.

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, NW

Washington, DC 20036-5306

(202) 955-8500

Counsel for Amicus Curiae

ce ee ee ee ee ee

QUESTIONS PRESENTED

Respondent Jerome Anthony Alford was pulled over

when motorists reported that Alford’s vehicle was outfitted

with “wig-wag” headlights creating the impression of a po-

lice car. The officers, Petitioners Gerald Devenpeck and Joi

Haner, noticed a portable police scanner, a radio broadcasting

the communications of the sheriff's office, and a set of hand-

cuffs in his vehicle. When the officers asked Alford to dem-

onstrate the wig-wag headlights, he claimed he was unable to

do so, even though they were easily activated with the press

of a button near the steering wheel. The officers also discov-

ered that Alford had been surreptitiously tape recording their

conversation with a hidden recorder.

The officers arrested Alford for the tape recording, but

exercised their discretion not to charge him at that time with

impersonating an officer or with obstructing their investiga-

tion. When the tape recording charge was later dismissed,

Alford sued the officers, alleging that he was arrested without

probable cause. The Ninth Circuit held that even if probable

cause existed to arrest Alford for impersonation and obstruc-

tion, the arrest nonetheless violated the Fourth Amendment

because those offenses were not “closely related” to the tape

recording offense. The Ninth Circuit also reversed the jury’s

verdict granting the officers qualified immunity.

Amicus will address the following questions:

1. Whether an officer who has probable cause to arrest

for two offenses commits an unconstitutional seizure if his

subjective motivation in making the arrest is a mistaken be-

lief that he has probable cause to arrest for a third offense.

2. Whether, for purposes of qualified immunity, the law

can be deemed “clearly established” on the basis of a single

decision from an intermediate state appellate court from out-

side the area where the challenged conduct occurred.

TABLE OF CONTENTS

Page

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INTEREST OF AMICUS CURTAE ....0cesssevcosesscsccsessssscesessovceees l

IIIT: ‘encenscennsssnsensontgesscnncionionennnenininnetantimmanieiniiiiaas 2

he IG cacntceesererseeitiornenitnietenieiiiitnn 2

2. Proceedings in the Lower Courts.................::cceseeeeeeee 5

SUMMARY OF ARGUMENT ...sccccsssssccoscccccscscccoscscsscnseccccssees 6

SEEN OE csvesercessscnanuetetninsemnntentntmnntenadinmenmndanla 7

I THE CLOSELY-RELATED OFFENSE

RULE IS INCONSISTENT WITH WHREN

AND THIS COURT'S FOURTH

AMENDMENT DECISIONG...........ss0csercsosssssvesereees 8

A. The Fourth Amendment Inquiry

Considers The Objective Circumstances

Of The Arrest. Not The Officer’s

OTIS PETIT IIG oevcccccececscsccsesendeceensoscsnnnsese 8

B. This Court Should Reject The Ninth

EE Oe iccesccrseninceensenatipenianiiia 14

Il. THE NINTH CIRCUIT'S DENIAL OF

QUALIFIED IMMUNITY MUST BE

eR sariincnscssieesisisesbnitactntinsiciiibenpiesiaiiicidaitadientdiniadiatads 21

A. The Officers Did Not Violate “Clearly

EE CAO iscecitnssecsrcenecccnsnlindiuanacinaiaasbins 22

B. The Officers’ Conduct Was Objectively

IID cocerceserensecntencnvicitisinmnssansniniaasaiaiaiaiaiail 25

TU ITIIED cnvticesentecinenensnapaerenceineibinitianseniiadlaiamemain 26

ill

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) .........cc-eceeeeeee 22

Arkansas v. Sullivan, 532 U.S. 769 (2001) .........ccccceecseeeeeeeees 9

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

CRIBB ED acsessscsssssessecemsmnrsenmiteninmigsenmininiiiaminaa 12, 20

Avery v. King, 110 F.3d 12 (6th Cir. 1997) ...........ccccccesseeeees 19

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

(36 Gas. BO cccsecsssccssssnsssessesemenesiscssiitnianiinnanniniimsmemmaa 17

Beck v. Ohio, 379 U.S. 89 (1964)........ccccccceceeeeeeeeeeneeneerees 9,13

Bingham v. City of Manhattan Beach,

341 F.36 SED CO Cas. BRP ccocnccsccssevescesesesecsesssmsenssveents 19

Butz v. Economou, 438 U.S. 478 (1978) .........c..ccecceeeeeeerenees 26

Chicago v. Morales, 527 U.S. 41 (1999).........ccccccecseeereeeeeeees l

Craig v. Singletary, 127 F.3d 1030

Ul: | 12

Dickerson v. United States, 530 U.S. 428 (2000)...........cc000+ l

Florida v. Royer, 460 U.S. 491 (1983)........ccccccccceceeeeneneeenes 10

Gassner v. Garland, 864 F.2d 394

he ee 16, 17

Gustafson v. Florida, 414 U.S. 260 (1973) .......ccccccsseesenseeeee 11

Harlow v. Fitzgerald, 457 U.S. 800 (1982).............ccseceeeees 22

Hunter v. Bryant, 502 U.S. 224 (1991) .......cccccceeceeceeeeees 22, 26

Illinois v. Andreas, 463 U.S. 765 (1983).....:.....c.cccceceeeeeenees 12

Illinois v. Gates, 462 U.S. 213 (1983)........ccccccereereereerenneees 13

Joyce v. State Dep't of Corrections, 75 P.3d 548

(Wash. App. Div. 2 2003), review granted,

ee 23

Klingler v. United States, 409 F.2d 299

STITT UTI desshiaitaieailesariieteiaiangaamumesnianeaaseanemeneees 13, 20

Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) .................. 17

Locke v. United States, 11 U.S. 339 (1813) .........cccccccceeeeees 13

Malley v. Briggs, 475 U.S. 335 (1986)............cccceseeeeeee 21, 22

Maryland v. Garrison, 480 U.S. 79 (1987) ..........ccccccceeeeees 26

Maryland v. Macon, 472 U.S. 463 (1985)............cc00ccceeeeees 17

Maryland v. Pringle, 124 S. Ct. 795 (2003)............. 12, 13-14

Michigan v. DeFillippo, 443 U.S. 31 (1979)...........cccccceee0e0 14

Pennsylvania Bd. of Prob. & Parole v. Scott,

EE l

Richardson v. Bonds, 860 F.2d 1427

EE 20

Saucier v. Katz, 533 U.S. 194 (2001) ............ccccccceceeseeeeneeees 22

Savino v. City of New York, 331 F.3d 63

Eee 11

Scott v. United States, 436 U.S. 128 (1978) ............cccccceeeees 10

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

STEED GIT ccrctstnlicientananteicnecinnniepmenesenennummanmanmeneens 16, 19

State v. Clark, 916 P.2d 384 (Wash. 1996).................... 24, 25

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

ee passim

es Ge eee ey 0 GUID crreecectrcensenersesseserearecssncsnnnenees 9

Thacker v. City of Columbus, 328 F.3d 244

ETE CTE sicrnsniesineinteninnenintsentnsementnatnecemetemensseneeee 12

Trejo v. Perez, 693 F.2d 482 (Sth Cir. 1982) ....0.........cce000- 19

United States v. Atkinson, 450 F.2d 835

IE, SEIUUTIII A iniciiishiheiteciaticaiaanitinerrisieaiatinrtcaaaniataecatiini 21

United States v. Bookhardt, 277 F.3d 558

urn csiieasernesinsininitinaninenninesiiaitieeenemen 17, 18, 21

United States v. Cervine, 347 F.3d 865

I iti nsiicrliniinstnte tienen tininei aiinenianaataiaeitl 12

United States v. Dhinsa, 171 F.3d 721

SETEPUIID HITE acersintaneerccinsininniiameenailhnidipbieniiipenemeainneneniniti 15

United States v. Fiasconaro, 315 F.3d 28

SEI SETI sinsitninndestinniitiastiniinaiesaiinetiiaiieniieeninimniiaiia 11

United States v. Hensley, 469 U.S. 221 (1985) ..............0-++- ll

United States v. Ibarra-Sanchez, 199 F.3d 753

SESE, TUTTI hccicisiecnciahinninieinciieitaladinintiinniihiaitaniiniiiasiaiaeaaeiiaiaia 12

United States v. Kalter, 5 F.3d 1166

A Te 17

United States v. Knights, 534 U.S. 112 (2001)..................000-+ 1

United States v. Menon, 24 F.3d 550

I, Sciatica 11

United States v. Robinson, 414 U.S. 218 (1973)............ 11,12

United States v. Sandoval-Venegas, 292 F.3d

ET hcincirerirrsieniuesintinsienineimmintantaaiiesinaiiiie 11

United States v. Sawyer, 224 F.3d 675

EIT aT ixiereericemeitniarsiasasienctiiinessitisiieiiiesitiacisinmatuaiaiaae 11

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

ee ee 11

United States v. Wells, 98 F.3d 808

GER Ge, CU cncccsscnsnnsensnsensscsnnssessssenssensersnsensemeensese 11-12

United States v. Wells, 347 F.3d 280

GED GRR, SED crscescessessszszsscenscenescensecnsnscscsnrnesssnssnnsansncsts 12

United States v. Williams, 951 F.2d 1287

Si GED) CU cnnnserienennsannetiavintindincenaatenssmenunimenuntig 12

Whiteley v. Warden, 401 U.S. 560 (1971).............ccccceeeeeneees 11

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

Wilson v. Layne, 526 U.S. 603 (1999).............cccccceeeeeeees 23-24

STATUTES AND RULES

| _ 5

Oe 23

WASH. REV. CODE § 9A.60.040(3 (a) .............cccceccceeeeeeeeeeees 15

NK SS 15

WASH. REV. CODE § 46.16.240 .00..........ccccccceeeseeeeeeceneneeeees 15

a a Oe cecessanerestentenectintniiniannennniiies l

Bh a ee cresccnerienesemnnamnenninentn l

OTHER AUTHORITIES

’ U.S. ATTORNEYS’ MANUAL, § 9-27.320(B).............--ccc0ee0000 21

BRIEF OF THE CENTER FOR THE

COMMUNITY INTEREST AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS —

INTEREST OF AMICUS CURIAE!

The Center for the Community Interest (“CCI”) is a na-

tional, not-for-profit organization dedicated to public safety

and urban quality of life. CCI works with public officials

and community groups across the country to develop and de-

fend policies that strike a common-sense balance between the

rights of the individual and the needs of the larger commu-

nity. CCI has participated in a wide range of public safety

and quality of life cases before this Court and other courts

throughout the country, and has developed model legislation,

policies, and internet resources that help communities ad-

dress problems such as illegal gangs, disorder in public

spaces, nuisance properties, open-air drug markets, and adult

businesses in residential neighborhoods.

CCI has participated as amicus before this Court in sev-

eral recent cases involving the Fourth Amendment and ques-

tions of criminal procedure, including United States v.

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

530 U.S. 428 (2000), Chicago v. Morales, 527 US. 41

(1999), and Pennsylvania Bd. of Prob. & Parole v. Scott, 524

U.S. 357 (1998). CCI is concerned that the Ninth Circuit’s

decision in this case, if allowed to stand, would endanger

public safety and needlessly hamper law enforcement by ex-

posing police officers to personal civil liability for making

lawful arrests supported by probable cause.

1 Pursuant to this Court’s Rule 37.3(a), letters of consent from all par-

ties to the filing of this brief have been filed with the Clerk. Pursuant to

Rule 37.6, CCI states that this brief was not authored in whole or in part

by counsel for any party, and that no person or entity other than CCI or

its counse] made a monetary contribution to the preparation or submis-

sion of this brief.

STATEMENT

1. Factual Background

This case arises from a traffic stop and arrest that oc-

curred by the side of a darkened highway in Washington state

on a rainy evening in November, 1997. State Trooper Joi

Haner was on duty when he noticed Alford’s car pulling in

behind a disabled vehicle parked on the shoulder. Tnal

Transcript (“Tr.”) 202. Haner made a U-turn and drove back

to see if the stranded motorists needed his assistance. Jd. He

pulled in behind the vehicles and as he was walking toward

them, he encountered respondent Alford, who told him that

the stranded motorists had a flat tire and needed a flashlight.

Id. Haner noticed that Alford appeared to be in a hurry; Al-

ford did not stop or pause to speak with Haner, but simply

walked past the officer and got into his car. /d. at 202-03.

Haner approached the stranded car and discovered it

contained two men. /d. at 203. The two men asked the

trooper whether respondent Alford was a police officer. /d.

at 204. When Haner asked what gave them that impression,

they told him that Alford’s vehicle had wig-wag headlights—

i.e., headlights that flash alternately—and that they had con-

cluded that Alford was an officer. Jd. At that moment, Al-

ford’s car was pulling out past them onto the highway.

Haner pointed out the car and asked the motorists to confirm

tha. that was the vehicle in question. The motorists said,

“[yJeah, we thought he was a cop.” Jd.

After making sure the motorists had everything they

needed to change their tire, Haner got back into his vehicle

and drove off after Alford. Haner explained that his purpose

was to “investigate [why] he had wig-wag headlights and

why he was leaving the impression with these people that he

was a police officer.” Jd. at 204-05 (“I was kind of having

some concerns as far as what [Alford’s] intentions were and

some fears for public safety . . . if he’s pulling in behind cars

and leaving an impression that he’s a police officer.”). As he

drove, Haner contacted his supervisor, Sergeant Gerald De-

venpeck, and asked for assistance. Haner testified that “I

thought I might have an impersonator or a ‘wanna be’ cop, so

to speak, and I wanted the supervisor there because I did not

know what I was going to be getting into.” Jd. at 206.

Trooper Haner caught up with Alford and pulled him

over to the side of the road. He was unable to run a check on

Alford’s license plate because it was obscured by a dark,

tinted cover. Jd. at 209. Haner approached the vehicle from

the passenger side and spoke with Alford through the open

window. /d. at 210.

Haner immediately noticed that Alford had a police-band

radio in his vehicle broadcasting the communications of the

Kitsap County sheriff's office. Jd. Attached to the radio was

a microphone. /d. at 211. Haner also noticed a pair of hand-

cuffs in the back seat. /d. at 212.

Alford began by telling Haner that he used to be a police

officer in Texas—a statement Alford later admitted was a lie.

Id. at 137-38 (Alford testimony that his claim to have been a

Texas officer “was not the truth” and that he lied in hopes

that Haner “would just cut me a little bit of slack, profes-

sional courtesy”), 213. Haner asked about the wig-wag head-

lights, and Alford asserted that they were part of a recently-

installed alarm system on his vehicle. Jd. at 214.

Haner then asked Alford to demonstrate the wig-wag

headlights. Alford kept pushing different buttons on his key

chain, but was seemingly unable to activate them. Jd. at 214-

15. Haner suspected that Alford was not making an honest

effort to turn them on. /d. at 214 (Haner testimony) (“As

[Alford] was going through it more and more, I was believ-

ing that he was being a little more evasive and he wasn’t try-

ing to turn them on. He was trying to avoid it.”). Alford was

never able to activate the headlights. Later, the police acti-

vated the headlights by pushing a button built into the car’s

dashboard and confirmed that they “looked identical” to the

wig-wag headlights on a patrol car. Jd. at 230, 310.

Sergeant Devenpeck arrived on the scene and the two of-

ficers conferred by Haner’s vehicle. Haner advised his su-

pervisor that he “suspected [Alford] had wig-wag headlights

but was being evasive and not turning them on.” /d. at 217.

Haner further explained that Alford “had the police frequen-

cies, the handcuffs, and other things; that he left the impres-

sion that he was a police officer with the people who were

disabled.” Jd.

Devenpeck approached Alford’s vehicle and began ques-

tioning him through the open passenger-side window. Alford

told Devenpeck that his use of the wig-wag headlights had

been authorized by the Kitsap Country sheriff's office. Jd. at

312-13. At one point in the conversation, Alford moved his

arm and dislodged a jacket on the passenger seat, revealing a

tape recorder that was recording the conversation. /d. at 301.

Devenpeck told Alford that he was under arrest for

unlawful tape recording in violation of Washington’s Privacy

Act, and Haner removed Alford from the vehicle. Jd. at 301.

Alford asserted that his tape recording was lawful. /d. at 307.

Devenpeck reviewed the text of the Privacy Act to con-

firm that his view of the law was correct and that Alford’s

was wrong. /d. at 312. Devenpeck also made a series of

calls from the field. First, he called the Kitsap County sher-

iffs office in an effort to validate Alford’s claim that the

sheriff had authorized his use of the headlights. Devenpeck

spoke with a sergeant in the office who said he knew nothing

about it. Jd. at 312-13.

Devenpeck then called a trooper to obtain the home

phone number of Mark Lindquist, the deputy Washington

State prosecutor who would be handling the case. Deven-

peck obtained the number and left a message on Lindquist’s

answering machine. /d. at 314. Devenpeck called back a

few minutes later and this time the prosecutor answered.

Devenpeck summarized what had happened and read the text

of the Privacy Act over the phone. /d. at 315. Lindquist ad-

vised Devenpeck that the arrest was a “good arrest” and sup-

ported by probable cause. /d. at 316.

Lindquist also advised Devenpeck that there existed

probable cause for obstructing an officer’s investigation

“based on the runaround the guy gave you,” as well as for

impersonating a police officer. Jd. at 319 (Devenpeck); id. at

363 (Lindquist) (“we also discussed possible impersonation

of an officer charge here and possible false representation to

an officer”). Devenpeck cautioned Lindquist, however, that

“the State Patrol doesn’t stack charges.” Jd. at 320.

At the jail, Alford was booked on the Privacy Act charge

and issued a notice of infraction for the wig-wag headlights.

Id. at 239-41; Joint Appendix 24-25.

2. Proceedings in the Lower Courts

The Privacy Act charge was later dismissed, and Alford

sued Devenpeck and Haner under 42 U.S.C. § 1983, alleging

that the arrest violated his Fourth Amendment right to be free

from unreasonable seizure. A jury found for the officers and

the district court denied Alford’s motion for a new trial.

The Ninth Circuit reversed. The court held that the offi-

cers lacked probable cause to arrest Alford for violating the

Privacy Act, and that the presence of probable cause to arrest

for impersonation or obstruction could not cure the Fourth

Amendment violation. See 333 F.3d 972, 976-77. In reach-

ing this conclusion, the court relied on the “closely-related

offense” rule, which provides that if there was not probable

cause to arrest for the crime articulated by the officer at the

time of the arrest, the arrest is constitutional only if probable

cause existed for a “closely related” offense that “involves

the same conduct for which the suspect was arrested.” Jd. at

976 (quotation and emphases omitted). The court reasoned

that because “[a]ny impersonation charge would be based on

Alford’s use of wig-wag headlights,” and because “[a]n ob-

struction charge would be based on Alford’s evasion in al-

legedly not turning on the wig-wag lights assuming he knew

how,” these offenses did not qualify as “closely related” and

could not justify the arrest. /d.

The court also held that the officers were not entitled to

qualified immunity. The court found that Washington case-

law permitting the tape recording of a traffic stop was clearly

established, and that the officers’ conduct was not objectively

reasonable. /d. at 977-79. The court concluded that

“{bJecause in light of the facts and clearly established law no

objectively reasonable officer could have concluded that ar-

resting Alford for taping the traffic stop was permissible, de-

fendants were not entitled to immunity.” Jd. at 979.

Judge Gould dissented, pointing out that “the determina-

tion of reasonableness is in the province of the jury” and that

the officers “quite obviously were doing their job to protect

the public.” Jd. He noted that the officers “stopped Alford

for good reason because his approach to stranded vehicles,

giving an appearance that he was a police officer, was omi-

nous to say the least.” Jd. Moreover, the “officers arrested

Alford in good faith, with their judgment seconded by a pub-

lic prosecutor who was consulted.” Jd. at 980. In short,

“(t]he officers did not arrest Alford on a rogue mission, nor

motivated by malice, nor on a whim; instead, they provided

an example of how a responsible and fair-minded officer

should proceed deliberately when unfamiliar with the law a

person is or may be violating; the officers called the prose-

cuting attorney, told him the facts, and read the statute to

him.” Jd.

Judge Gould stated that “[t]he reason that the arrest

turned out to be illegal here was that the broad literal text of

the privacy statute had been interpreted restrictively by an

intermediate state appellate court in an opinion that was not

known by the officers or familiar to the prosecuting attor-

ney.” Jd. at 981. Accordingly, he concluded, where the offi-

cers’ “mistake was that they interpreted a state statute liter-

ally despite a state court ruling that had narrowed it,” the

jury’s determination that the officers’ conduct was reason-

able should not be disturbed. /d.

SUMMARY OF ARGUMENT

This Court should reverse the decision below and de-

clare the closely-related offense rule a dead letter in the wake

of Whren v. United States, 517 U.S. 806, 812 (1996), which

recognized that “an officer’s motive [cannot] invalidate[ ]

objectively justifiable behavior under the Fourth Amend-

ment.” The closely-related offense rule improperly focuses

on the officer’s motivation in making the arrest by asking

whether the offense that prompted the arrest is closely related

to an offense for which probable cause existed. The rule re-

sults in erroneous findings that the Fourth Amendment was

violated in cases like this one, where the officers engaged in

“objectively justifiable behavior” and the challenged arrest

was supported by probable cause. This Court should hold

that an arrest is constitutional if the facts and circumstances

known to the officers at the time of the arrest would give rise

to probable cause to arrest for any offense.

In the event it reaches the question, this Court should re-

verse the Ninth Circuit’s determination that the arresting of-

ficers in this case were not entitled to qualified immunity.

The sole basis for finding Alford had a “clearly established”

right to tape record the officers was a single decision by an

intermediate appellate court from a different area of Wash-

ington State that is distinguishable on its facts. In any event,

the officers’ conduct was objectively reasonable, as reflected

in their good-faith efforts to parse the text of a broadly

worded statute and in telephoning the deputy prosecutor, who

confirmed that their legal judgment was correct.

ARGUMENT

The Fourth Amendment guarantees “[t]he right of the

people to be secure in their persons, houses, papers, and ef-

fects, against unreasonable searches and seizures.” This case

presents the question whether the Fourth Amendment is vio-

lated when probable cause exists to make an arrest for one

offense, but the officer mistakenly elects to arrest the defen-

dant for a different offense that was not supported by prob-

able cause. The Ninth Circuit held that such a seizure is con-

stitutional only if the two offenses are “closely related” and

“involve[ ] the same conduct.” 333 F.3d at 976 (emphasis

and quotation omitted).

I. THE CLOSELY-RELATED OFFENSE RULE

IS INCONSISTENT WITH WHREN AND

THIS COURT’S FOURTH AMENDMENT

DECISIONS

The fundamental flaw in the Ninth Circuit’s reasoning is

that it depends on the officer’s motivation in making the ar-

rest. This methodology is inconsistent with this Court’s

Fourth Amendment jurisprudence, which requires an exclu-

sive focus on the objective facts and circumstances known to

the arresting officer in determining whether a seizure is “rea-

sonable.”

A. The Fourth Amendment Inquiry Considers

The Objective Circumstances Of The Arrest,

Not The Officer’s Subjective Motivation

1. In Whren, this Court held that a traffic stop supported

by probable cause is consistent with the Fourth Amendment,

regardless of the police officer’s motivation in making the

stop. The case arose when the defendants were driving a

truck in a high-drug area and were pulled over by the police.

The ostensible reason for the stop was that the defendants

had pulled away from a stop sign at an unreasonable speed

and had not signaled when turning. The officers discovered

drugs in the truck, and the defendants attempted to suppress

the evidence by challenging the stop as pretextual. See 517

U.S. at 808-09.

In a unanimous decision, this Court rejected the sugges-

tion “that the constitutional reasonableness of traffic stops

depends on the actual motivations of the individual officers

involved,” and held that “[s]ubjective intentions play no role

in ordinary, probable-cause Fourth Amendment analysis.”

Id. at 813. The Court noted that outside the context of inven-

tory searches or administrative inspections, it had never held

that “an officer’s motive invalidates objectively justifiable

behavior under the Fourth Amendment,” and in fact had “re-

peatedly held and asserted the contrary.” /d. at 812. The

Court concluded that “the Fourth Amendment’s concern with

‘reasonableness’ allows certain actions to be taken in certain

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

In Arkansas v. Sullivan, 532 U.S. 769 (2001), this Court

held that Whren applies to custodial arrests as well as traffic

stops. The Court squarely rejected the lower courts’ conclu-

sion that the challenged arrest, “although supported by prob-

able cause, nonetheless violated the Fourth Amendment be-

cause [the officer] had an improper subjective motivation for

making the stop.” Jd. at 771. The Court again emphasized

its “unwillingness to entertain Fourth Amendment challenges

based on the actual motivations of individual officers,” and

reiterated that the officers’ “subjective intentions” cannot in-

validate an arrest when the objective circumstances known to

the officer establish probable cause. Jd. at 771-72 (quotation

omitted).

2. Whren and Sullivan follew a long line of this Court’s

precedent establishing that the Fourth Amendment/probable

cause analysis hinges on the objective facts and circum-

stances known to the officer at the time, and not on the offi-

cer’s subjective reasoning for making the seizure.

In Beck v. Ohio, 379 U.S. 89, 91 (1964), for example,

the Court explained that “[w]hether [an] arrest was constitu-

tionally valid depends in turn upon whether, at the moment

the arrest was made, the officers had probable cause to make

it—whether at that moment the facts and circumstances

within their knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent

man in believing that the [suspect] had committed or was

committing an offense.” Similarly, in Terry v. Ohio, the

Court emphasized that “in making [the Fourth Amendment]

assessment 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 or search warrant a man of reason-

able caution in the belief that the action taken was appropri-

ate?” 392 U.S. 1, 21-22 (1968) (quotation omitted).

In short, the Fourth Amendment analysis focuses on

what a reasonable officer could have believed based on the

facts available at the time; it does not depend on what the in-

dividual officer in the case actually believed. This principle

is illustrated by Scott v. United States, 436 U.S. 128, 138

(1978), where the Court ev >lained that “the fact that the offi-

cer does not have the state of mind which is hypothecated by

the reasons which provide the legal justification for the offi-

cer’s action does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that action.” The

Court noted that “[a]lmost without exception in evaluating

alleged violations of the Fourth Amendment the Court has

first undertaken an objective assessment of an officer’s ac-

tions in light of the facts and circumstances then known to

him.” /d. at 137.

Florida v. Royer, 460 U.S. 491 (1983), strongly supports

the conclusion that the individual officers’ belief as to

whether probable cause existed is irrelevant to the Fourth

Amendment inquiry. Royer presented the question whether

the defendant was being illegally held at the time he gave

consent to open his luggage. The State argued that the de-

fendant was not being held illegally when he consented, be-

cause there was probable cause to arrest him at the time. /d.

at 507. Although the arresting officer had testified at the

suppression hearing that there was no probable cause to ar-

rest until the luggage was opened, and the Court ultimately

concluded that probable cause was lacking and reversed the

conviction, the controlling four-Justice plurality emphasized

that “the fact that the officers did not believe there was prob-

able cause and proceeded on a consensual or Jerry-stop ra-

tionale would not foreclose the State from justifying [the de-

fendant’s] custody by proving probable cause and hence re-

moving any barrier to relying on [the defendant’s] consent to

search.” Jd. Three of the Justices who dissented from the

reversal of the conviction apparently agreed with this analy-

sis. See id. at 530 n.8 (noting that the detention “would also

pass muster” under probable cause standards, but arguing

that the conviction could be affirmed on other grounds, so

that ty probable-cause issue need not be decided in this

case”).

Indeed, the rule could hardly be otherwise, for a number

of this Court’s cases establish that an arrest is lawful if prob-

able cause exists even when the arresting officer himself is

aware of none of the facts that establish probable cause. Be-

ginning with Whiteley v. Warden, 401 U.S. 560 (1971), and

culminating in United States v. Hensley, 469 U.S. 221

(1985), this Court has repeatedly emphasized that an officer

may arrest a citizen based on a crime accusation that is con-

tained in a police flyer or radio bulletin—even if the arresting

officer knows nothing at all about the circumstances that es-

tablish probable cause—so long as “the officers who issued

the flyer [or radio call] possessed probable cause.” Hensley,

469 U.S. at 231. Based on these cases, it is by now also well

established that the existence vel non of probable cause must

be determined by assessing the objective facts collectively

known to ail officers involved in the investigation.> As this

2 The irrelevance of an arresting officer’s subjective motivation in

making the arrest is further reflected in this Court’s many pre-Whren de-

cisions rejecting “pretext”-based Fourth Amendment challenges. See,

e.g., United States v. Robinson, 414 U.S. 218, 221 n.1 (1973) (traffic-

violation arrest not rendered invalid by the fact it was “a mere pretext for

a narcotics search”); Gustafson v. Florida, 414 U.S. 260, 266 (1973)

(“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 [defendant] or that he did not himself suspect that the [defen-

dant] was armed.”); United States v. | \\lamonte-Marquez, 462 U.S. 579,

584 n.3 (1983) (rejecting idea that officers’ ulterior motive could negate

legal justification for search).

3 See, e.g., United States v. Sandoval-Venegas, 292 F.3d 1101, 1105

(9th Cir. 2002) (“probable cause may be based on the collective knowl-

edge of officers at the scene of an arrest”); United States v. Sawyer, 224

F.3d 675, 680 (7th Cir. 2000) (“When law enforcement officers are in

communication regarding a suspect, the knowledge of one officer can be

imputed to the other officers under the collective knowledge doctrine.”);

see also United States v. Fiasconaro, 315 F.3d 28, 35-36 (1st Cir. 2002);

Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003); United States

v. Menon, 24 F.3d 550, 560-61 (3d Cir. 1994); United States v. Wells, 98

Court put it in Jilinois v. Andreas, 463 U.S. 765, 771-72 n.5

(1983), “where law enforcement authorities are cooperating

in an investigation ... the knowledge of one is presumed

shared by all.”4 It would be odd to permit courts to piece

together probable cause on the basis of knowledge shared by

multiple officers, but require that evidence be suroressed, or

damages awarded, in cases in which probable « aus > does ex-

ist, merely because a single officer mistakenly elected to

charge under a different statute for which probable cause is

lacking.

3. These cases demonstrate that the Fourth Amendment

protects against “unreasonable” seizures of the person, with

reasonableness determined solely by the presence or absence

of probable cause. See, e.g., Robinson, 414 U.S. at 235 (“A

custodial arrest of a suspect based on probable cause is a rea-

sonable intrusion under the Fourth Amendment.”); Whren,

517 U.S. at 819 (endorsing “the traditional common-law rule

that probable cause justifies a search and seizure”); Atwater

v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an offi-

cer has probable cause to believe that an individual has

committed even a very minor criminal offense in his pres-

ence, he may, without violating the Fourth Amendment, ar-

rest the offender.”); Maryland v. Pringle, 124 S. Ct. 795, 799

(2003) (“A warrantless arrest of an individual in a public

place for a felony, or a misdemeanor committed in the offi-

cer’s presence, is consistent with the Fourth Amendment if

[Foomote continued from previous page]

F.3d 808, 810 (4th Cir. 1996); United States v. Ibarra-Sanchez, 199 F.3d

753, 759 (Sth Cir. 1999); Thacker v. City of Columbus, 328 F 3d 244, 256

(6th Cir. 2003); United States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003);

United States v. Cervine, 347 F.3d 865, 871 (10th Cir. 2003); Craig v.

Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997) (en banc); United States

v. Williams, 951 F.2d 1287, 1289-90 (D.C. Cir. 1992).

4 In Andreas, this Court held it was “plain error” for the Appellate

Court of Illinois to have refused to aggregate the knowledge of all the

officers involved in the investigation, focusing instead on the level of

“certainty” possessed by a single officer. See 463 U.S. at 771-72 nS.

the arrest is supported by probable cause.”). An otherwise

“reasonable” arrest—i.e., an arrest supported by probable

cause—is not transformed into an “unreasonable” invasion of

the person because of the arresting officer’s motivation or

flawed legal reasoning in making the arrest.

Seen another way, it is the presence of certain objective

facts, and nothing more, that gives rise to the authority under

the Fourth Amendment to seize the person. As the Eighth

Circuit has explained, “[f]rom the standpoint of the individ-

ual, the figurative zone protecting his privacy and personal

integrity may be encroached under the Jaw only by facts and

circumstances totaling probable cause for arrest.” Klingler v.

United States, 409 F.2d 299, 304 (8th Cir. 1969); see also

Locke v. United States, 11 U.S. 339, 348 (1813) (the term

requirement that the arresting officer have the “correct” mo-

tivation in effecting the seizure. Nor does the Fourth

Amendment require that the arresting officer engage in the

“correct” legal analysis or articulate the most precise legal

justification for the seizure at the moment he makes the ar-

rest. Cf Illinois v. Gates, 462 U.S. 213, 235 (1983) (noting

that law enforcement agents usually are “nonlawyers,” and

should not be held to the “[t]echnical requirements of elabo-

rate specificity once exacted under common law pleadings”)

(quotation omitted).

All that is required is that “at [the] moment [of the sei-

zure] the facts and circumstances within [the officers’]

knowledge and of which they had reasonably trustworthy in-

formation were sufficient to warrant a prudent man in believ-

ing that the [suspect] had committed or was committing an

offense.” Beck, 379 U.S. at 91. As the Court said in Pringle,

“{t]o determine whether an officer had probable cause to ar-

rest an individual, we examine the events leading up to the

from the standpoint of an objectively reasonable police offi-

cer, amount to probable cause.” 124 S. Ct. at 800 (quotation

omitted).°

B. This Court Should Reject The Ninth

Circuit’s Approach

The closely-related offense rule necessitates an examina-

tion of the officer's subjective motivation and/or the ade-

quacy of his individual legal reasoning in making an arrest,

directly contradicting this Court’s many decisions holding

that the arresting officer’s motivation has no bearing on

Fourth Amendment “reasonableness” determinations. This

Court should hold that the proper test for whether an arrest

violates the Fourth Amendment is whether it is supported by

probable cause to believe that any arrestable offense has oc-

curred.

1. The Ninth Circuit’s approach cannot be squared with

this Court’s precedent. Whren holds that an officer’s subjec-

tive motivation in making an arrest is irrelevant to the consti-

tutional inquiry, yet the closely-related offense rule defines

what is reasonable under the Fourth Amendment by reference

to the specific offenses that motivated the officer to make the

> It is by no means clear that the officers lacked probable cause to ar-

rest Alford for a Privacy Act violation. In Michigan v. DeFillippo, 443

U.S. 31 (1979), the respondent was arrested for violating an ordinance

that later was declared constitutionally void for vagueness in all of its

applications. This Court nevertheless held that the officers had probable

cause to make the arrest, explaining that the respondent’s conduct vio-

lated the plain language of the ordinance, and that “[a] prudent officer, in

the course of determining whether respondent had committed an offense

..., Should not have been required to anticipate that a court would later

hold the ordinance unconstitutional.” /d. at 37-38. The same reasoning

should apply here. The fact that the Privacy Act may be judicially inter-

preted as inapplicable to Alford’s case does not necessarily mean the of-

ficers lacked probable cause to arrest for a Privacy Act violation, given

that the arrest was based on a reasonable common-sense reading of the

statute and there was no definitive, controlling authority to the contrary.

See DeFillippo, 443 U.S. at 37 (probable cause present where, at time of

arrest, “there was no controlling precedent that this ordinance was or was

not constitutional”). See also pp. 22-25 infra.

arrest. Under the Ninth Circuit’s approach, an arrest is con-

stitutional only if the officer’s motivation in making the ar-

rest matches up with the same or similar offenses for which

probable cause existed. Whren, in contrast, asks simply

whether the arrest is “justifiable on the basis of probable

cause to believe that a violation of the law has occurred”

(517 U.S. at 811, emphasis added)}—~not whether that justifi-

cation is plausible (the question in Whren) or whether the of-

ficer happened to articulate that precise justification at the

moment of arrest (the question presented here). See United

States v. Dhinsa, 171 F.3d 721, 725 (2d Cir. 1998) (“A fair

reading of Whren .. . leads to the conclusion that an observed

traffic violation legitimates a stop even if the detectives do

not rely on the traffic violation.”).

Here, there is no question that probable cause existed to

arrest Alford—at the very least—for criminal impersonation

and obstructing a law enforcement officer. Alford’s conduct

strongly suggested that he was impersonating a policeman;

indeed, he had left that exact impression with the stranded

motorists. See WASH. REV. CoDE § 9A.60.040(3)(a) (“A

person is guilty of criminal impersonation in the second de-

gree if the person .. . [c]laims to be a law enforcement offi-

cer or creates an impression that he or she is a law enforce-

ment officer”). As Judge Gould remarked, Alford’s conduct

“was ominous to say the least.” 333 F.3d at 979. Moreover,

Alford’s admitted lying to Trooper Haner and his apparent

feigning ignorance of how to activate his wig-wag headlights

provided probable cause to arrest for obstruction. See WASH.

REV. CopE § 9A.76.020 (“A person is guilty of obstructing a

law enforcement officer if the person willfully hinders, de-

lays, or obstructs any law enforcement officer in the dis-

charge of his or her official powers or duties.”).© In short,

6 Alford’s conduct also appeared to violate WASH. REV. CODE

§ 46.16.240, which provides that license plates shall be attached to a ve-

hicle “in such a manner that they can be plainly seen and read at all

times.” Haner testified that Alford “had a dark, smoked, tinted license

plate cover making it unreadable.” Tr. 209.

Alford’s conduct established probable cause for arrest. That

is the extent of the analysis required under Whren, and the

Ninth Circuit should have gone no farther.

The closely-related offense rule is intended to smoke out

sham arrests by looking to the offenses the officers identified

at the time of the arrest. Implicit in the rule is the presump-

tion that any ex post rationale—or at least any ex post ration-

ale that is not “closely related” to the initial rationale—is

likely to be nothing more than an attempt to cover up a sham.

See, e.g., Sheehy v. Town of Plymouth, 191 F.3d 15, 21 (lst

Cir. 1999) (allowing reliance on unrelated offenses “would

open the door to the extrapolation of offenses in an effort to

justify a sham arrest”) (quotation omitted); Gassner v. Gar-

land, 864 F.2d 394, 398 (Sth Cir. 1989) (officers should not

be allowed “to justify 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”).

But this ignores the clear mandate of Whren. This Court

held that even if an arrest is a “sham”—in the sense that the

officer’s stated motive for the arrest was not the “real” mo-

tive—that fact is irrelevant to the Fourth Amendment in-

quiry. In reaching this conclusion, the Court rejected the de-

fendants’ proposed approach—comparing the officer’s al-

leged motivation with what a reasonable officer would have

done under the circumstances—as an “attempt to root out

subjective vies through objective means.” 517 U.S. at 814.

Here too, the closely-related offense rule is nothing more

than an “attempt to root out subjective vices through objec-

tive means,” namely by requiring the officers to identify on

the record all possible legal bases for the arrest at the time the

arrest is made. As the Court explained in Whren, such an

approach might make sense if the Court’s Fourth Amend-

ment precedents were based only “upon the evidentiary diffi-

culty of establishing subjective intent.” Jd. But the Court’s

precedents are “not based only upon that or even principally

upon that.” Jd. Rather, they are based on the notion that “the

Fourth Amendment’s concern with ‘reasonableness’ allows

certain actions to be taken in certain circumstances, whatever

the subjective intent.” /d. In this case, the circumstances al-

lowed the officers to arrest Alford, whatever the officers’

subjective intent.

Although the courts that have adopted some form of the

closely-related offense rule suggest that the inquiry is “en-

tirely objective,” see, e.g., Gassner, 864 F.2d at 398, that is

not the case. Any test that looks to the offenses the officer

identifies as the basis for the arrest is inherently and unavoid-

ably subjective, because it depends on the officer’s subjective

understanding of the law as applied to the facts and circum-

stances. In other words, the starting point for the closely-

related offense rule is the offenses the officer concludes the

law will support; it is the officer’s initial subjective justifica-

tion for the arrest that determines the scope of all possible

offenses that could later provide a probable cause basis for

the avert. Such a test is profoundly subjective, not objec-

tive.

. 2. If the closely-related offense rule is permitted to sur-

vive and co-exist alongside Whren, the perverse result will be

7 By contrast, the test applied by the circuits that disagree with the

Ninth Circuit is objective, rather than subjective, in that it focuses on the

facts known to the officer rather than on the officer’s assessment of the

legal significance of those facts. For example, in United States v. Book-

hardt, 277 F.3d 558, 567 (D.C. Cir. 2002), the court held that “if a police

officer arrests a defendant on a ground that ultimately proves invalid, the

arrest is nonetheless lawful if the same officer had probable cause to ar-

rest the defendant for a different criminal offense.” Thus, “[a]s long as

[the officer] had an objectively valid ground upon which to arrest [the

defendant}, the fact that he articulated an invalid ground does not render

the arrest unlawful.” Jd. at 566. See also Barna v. City of Perth Amboy,

42 F.3d 809, 819 (3d Cir. 1994); United States v. Kalter, 5 F.3d 1166,

1168 (8th Cir. 1993); Lee v. Ferraro, 284 F.3d 1188, 1195-96 (11th Cir.

2002). As this Court held in Maryland v. Macon, 472 U.S. 463 (1985),

“[w]heth:r a Fourth Amendment violation has occurred turns on an ob-

jective assessment of the officer’s actions in light of the facts and circum-

stances confronting him at the time, and not on the officer’s actual state

of mind at the time the challenged action was taken.” /d. at 470-71 (quo-

that an officer who arrests out of malice and admits it was

based on a pretext will be deemed to have acted lawfully if

the pretextual arrest is nonetheless supported by probable

cause—whereas a well-meaning officer could be held per-

sonally liable if he is honest about the reason for the arrest,

but has made a good-faith mistake of law. Ironically, the

well-meaning officer who makes a good-faith mistake would

be exposed to punishment because he failed to manufacture a

pretextual basis for the arrest. Cf United States v. Book-

hardt, 277 F.3d 558, 566 (D.C. Cir. 2002) (“We fail to see

... why the police should be in a better position if they pre-

varicate about the reason for arresting a defendant than if

they make an honest mistake of law.”).

Here, the record reflects that Officers Devenpeck and

Haner were well aware of other possible bases for the ar-

rest—indeed, the reason Alford was pulled over in the first

place was for possible impersonation of an officer—but they

consciously chose not to “stack” additional charges against

Alford. Deputy Prosecutor Lindquist testified that when he

was speaking with Sergeant Devenpeck on the phone the

night of the arrest, he was “floating the possibility of stacking

some more charges” on Alford. Tr. 373. Devenpeck testi-

fied that Lindquist advised him to charge Alford with ob-

structing an officer, but Devenpeck told him that “the State

Patrol doesn’t stack charges .... If you stop an alcohol-

impaired driver for excessive speed, you don’t write the per-

son a speeding ticket. Or if they run a stop sign and that’s

why you stopped them and you see that they are intoxicated,

you don’t normally write them a ticket for the stop sign vio-

lation.” Jd. at 320. Had the officers arrested Alford for im-

personation or obstruction in addition to the tape recording,

there would have been no basis for a false arrest claim and

this lawsuit would never have been brought. By treating the

officers’ exercise of discretion in Alford’s favor as the basis

for finding they violated his civil nghts, the closely-related

offense rule ensures that no good deed goes unpunished.

The closely-related offense rule should be rejected for

the additional reason that it is unworkable in practice: it has

not been applied consistently within the lower courts, or even

within the Ninth Circuit itself. The main problem lies in de-

termining the precise scope of conduct that may be consid-

ered in determining whether two offenses are “related.” For

example, in this case, the Ninth Circuit held that the two of-

fenses must “involve[ ] the same conduct.” 333 F.3d at 976.

But in Bingham v. City of Manhattan Beach, 341 F.3d 939

(9th Cir. 2003), the court framed the test as requiring that the

two offenses involve “the same course of conduct.” Id. at

951 (emphasis added). The outcome of this case thus turned

on which version of the Ninth Circuit test was applied, in that

impersonation and obstruction charges may not have in-

volved the same “conduct” as the tape recording charge, but

they clearly arose from the same “course of conduct.”

An additional problem lies in the difficulty of articulat-

ing a rule that can specify how closely related two offenses

must be in order to qualify as “closely related.” Under the

Ninth Circuit’s rule, as Judge Reinhardt explained in Bing-

ham, “in order for an alternate justification for the arrest to be

upheld, it must be closely related—the more closely related

the offenses, the more likely the arrest to be lawful.” 341

F.3d at 955 (Reinhardt, J., dissenting). Such a vague rule

provides law enforcement officers with no meaningful guid-

ance as to when an arrest may cross the line from constitu-

tional to unconstitutional, and the decisions of other circuits

that have adopted some form of the rule are similarly opaque.

See, e.g., Avery v. King, 110 F.3d 12, 14 (6th Cir. 1997)

(construing “closely related” standard as requiring that of-

fenses be “in some fashion related”) (quotation omitted);

Trejo v. Perez, 693 F.2d 482, 486 (Sth Cir. 1982) (observing

that the definition of “related” has been “left for case law de-

velopment”).

Another area of confusion is whether the offenses that

provided the basis for the arrest should be determined by

vat the officer announces at the scene, or by the offenses

cited when the suspect is brought to the police station for

booking. Compare Sheehy v. Town of Plymouth, 191 F.3d

15, 20 (1st Cir. 1999) (“related crimes analysis should focus

on the conduct underlying the crime cited by the officer at

the time of the arrest”) with Richardson v. Bonds, 860 F.2d

1427, 1430 (7th Cir. 1988) (“[i]f statements made by the of-

ficer at the time of the arrest were used as an indication of the

offense for which the officer believed probable cause existed,

officers could simply remain silent as to the basis for the ar-

rest”) and Klingler v. United States, 409 F.2d 299, 306 (8th

Cir. 1969) (“The law cannot expect a patrolman, unschooled

in the technicalities of criminal and constitutional law, fol-

lowing the heat of a chase, to always be able to immediately

state with particularity the exact grounds on which he is ex-

ercising his authority.”) (quotation omitted).

This Court has “traditionally recognized that a responsi-

ble Fourth Amendment balance is not well served by stan-

dards requiring sensitive, case-by-case determinations of

government need, lest every discretionary judgment in the

field be converted into an occasion for constitutional re-

view.” Atwater v. City of Lago Vista, 532 U.S. 318, 347

(2001). Yet virtually any formulation of a closely-related

offense rule will cause uncertainty in the field, and result in

far more occasions for constitutional review, as courts and

juries struggle to determine what the exact “conduct” was in

a particular case, what the precise offenses were that formed

the basis for an arrest (and when they were articulated), and

whether those offenses are “closely related” or merely “re-

lated.” As this Court explained in Atwater, “the object in

implementing [the Fourth Amendment’s] command of rea-

sonableness is to draw standards sufficiently clear and simple

to be applied with a fair prospect of surviving judicial sec-

ond-guessing months and years after an arrest or search is

made.” Jd.

Finally, the closely-related offense rule should be re-

jected because it makes no sense from a policy perspective

and will have harmful consequences not just for officers, but

for criminal defendants as well. The rule creates an incentive

for police officers to stack charges against suspects as a way

of insulating the arrest from Fourth Amendment challenge—

and of protecting themselves against personal liability—in

the event a particular charge does not “stick.” As the D.C.

Circuit recognized in Bookhardt, the closely-related offense

rule does “no more than create 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’—yielding no addi-

tional protection of civil liberties while adding considerably

to the burden placed upon both defendants and police.” 277

F.3d at 566 (quoting United States v. Atkinson, 450 F.2d 835,

838 (Sth Cir. 1971)). “Such a clogging of the criminal proc-

ess already heavily encumbered, would be pointless.” Atkin-

son, 450 F.2d at 838.

By incentivizing officers to charge every possible of-

fense supported by probable cause, the closely-related of-

fense rule undermines the discretion law enforcement offi-

cers have traditionally exercised. The United States Attor-

neys’ Manual states that “[i]t is important to the fair and effi-

cient administration of justice in the Federal system that the

government bring as few charges as are necessary to ensure

that justice is done” and that “[t]he bringing of unnecessary

charges not only complicates and prolongs tnals, it consti-

tutes an excessive ... exercise of power.” Manual at § 9-

_27.320(B). Under the guise of protecting the nghts of crimi-

nal suspects, the Ninth Circuit’s approach actually limits of-

ficers’ ability to exercise their discretion in the suspects’ fa-

vor by not charging every possible offense.

Il. THE NINTH CIRCUIT’S DENIAL OF

QUALIFIED IMMUNITY MUST BE

REVERSED

This Court has recognized that qualified immunity

leaves “ample room for mistaken” but nonetheless reasonable

“judgments” by police officers concerning legal require-

ments. Malley v. Briggs, 475 U.S. 335, 343 (1986). Even

where an officer’s conduct violates the Constitution, the offi-

cer is immune from personal liability unless “on an objective

basis, it is obvious that no reasonably competent officer

would have concluded” that the actions were constitutional.

Id. at 341. “[I}f officers of reasonable competence could dis-

agree on [the] issue, immunity should be recognized.” /d.

Accordingly, “whether an official protected by qualified im-

munity may be held personally liable for an allegedly unlaw-

ful official action generally turns on the ‘objective legal rea-

sonableness’ of the action, assessed in light of the legal rules

that were ‘clearly established’ at the time it was taken.”

Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). “Even law

enforcement officials who ‘reasonably but mistakenly con-

clude that probable cause is present’ are entitled to immu-

nity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting

Anderson, 483 U.S. at 641).

Because the Ninth Circuit erred in finding a constitu-

tional violation, the court’s denial of qualified immunity

must be reversed on that basis alone. But the court’s decision

is erroneous for several additional reasons, primarily because

the law in question was not “clearly established” and because

the officers’ conduct was objectively reasonable in any event.

A. The Officers Did Not Violate “Clearly

Established” Law

The Ninth Circuit erred in deeming it “clearly estab-

lished” that Alford’s tape recording was lawful under Wash-

ington’s Privacy Act. See 333 F.3d at 977. This Court has

explained that “[t]he relevant, dispositive inquiry in deter-

mining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz,

533 U.S. 194, 202 (2001). See also Anderson, 483 U.S. at

640 (“[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is

doing violates that right. . . . [I]n the light of pre-existing law

the unlawfulness must be apparent.”’).

In this case, the relevant inquiry is whether a reasonable

officer could have believed that arresting Alford for violating

Washington’s Privacy Act was lawful, in light of clearly es-

tablished law and the information the officers possessed. The

answer to that question is plainly yes. The statute, which ap-

plies to “private” conversations, can reasonably be construed

to encompass a conversation occurring at-night time on a

desolate stretch of road, with no third parties present and no

assers-by in the vicinity. See WASH. REV. CODE

§ 9.73.030(1)(b) (“it shall be unlawful for any individual .. .

to intercept or record any ... [p]rivate conversation, by any

device electronic or otherwise . . . without first obtaining the

consent of all persons engaged in the conversation”). To be

sure, the fact that one of the parties to the conversation is a

police officer acting in the course of his official duties may

have a bearing on whether the conversation can properly be

deemed “private” as a matter of law. But the text of the stat-

ute offers no guidance on this point. Although there is a pro-

vision exempting reporters, see WASH. REV. CODE

§ 9.73.030(4), there is no similar exception for police offi-

cers.

In any event, the Ninth Circuit’s basis for deeming the

law “clearly established” was not the text of the statute itself,

but a 1992 decision from an intermediate Washington appel-

late court construing and narrowing the statute, State v.

Flora, 845 P.2d 1355 (Wash. App. Div. 1 1992). Flora held

that, at least in certain circumstances, the Privacy Act was

not violated when an individual tape recorded his conversa-

tion with police officers.

Even taking Flora for all it might be worth—i.e., as a

rule of law exempting the taping of police officers from the

reach of the Privacy Act—a single case from an intermediate

state appellate court is not sufficient to “clearly establish” the

legal rule in question. That is particularly true here, where

the court in question was not the appellate court for the area

where the arrest occurred. In Wilson v. Layne, this Court

8 Washington State is divided into three appellate divisions, and a de-

cision from one appellate division is not binding on the others. See, e.g.,

Joyce v. State Dep't of Corrections, 75 P.3d 548, 559 n.9 (Wash. App.

Div. 2 2003) (case from another division “is merely persuasive authority

and is not binding on us”), review granted, 84 P.3d 1229 (Wash. 2004).

held that a rule was not “clearly established” when

“[p]etitioners have not brought to our attention any cases of

controlling authority in their jurisdiction at the time of the

incident which clearly established the rule on which they

seek to rely, nor have they identified a consensus of cases of

persuasive authority such that a reasonable officer could not

have believed that his actions were lawful.” 526 U.S. 603,

617 (1999). So too here: the decision in Flora was not bind-

ing on the appellate court for the area of Washington state

where the arrest was made. Aside from Flora, the Ninth Cir-

cuit identified no other case reaching the same result, let

alone a “consensus of cases.”

Moreover, Flora is clearly distinguishable on its facts, in

that the court’s conclusion that the taped conversation was

not “private” apparently depended, at least in part, on the

presence of a third party and passers-by. Indeed, the court

stated that it was rejecting the view “that public officers per-

forming an official function on a public thoroughfare in the

presence of a third party and within the sight and hearing of

passersby enjoy a privacy interest which they may assert un-

der the statute.” 845 P.2d at 1357 (emphasis added). The

court then commented that “[d]etermining whether a given

matter is private requires a fact-specific inquiry,” thus under-

cutting any suggestion that it was creating a per se rule appli-

cable to police officers conducting official business. Jd.

The Supreme Court of Washington does not appear ever

to have embraced a rule of law that a citizen always has a

right to tape record his interactions with police. In its only

discussion of Flora, the court emphasized that it was the pub-

lic nature of the arrest, and the presence of a third party, that

rendered the Privacy Act inapplicable in that case. See State

v. Clark, 916 P.2d 384, 392-93 (Wash. 1996) (describing

Flora as standing for the proposition that “a conversation on

a public thoroughfare in the presence of a third party and

within the sight and hearing of passersby is not private”).?

The court explained that “[t]he officers in Flora had no per-

sonal privacy interest in statements made as public officers

effectuating an arrest in public” because “the presence of an-

other person during the conversation means that the matter is

not secret or confidential.” Jd. at 393.

In short, even if the law required officers to parse

through all conceivably applicable precedents before making

an arrest—and to do so with the discrimination of an Oxford

don—it would be impossible to say that petitioners’ conduct

violated any “clearly established” principle of Washington

law.

B. The Officers’ Conduct Was Objectively

Reasonable

The jury concluded that the officers’ conduct was objec-

tively reasonable and ruled in their favor. The Ninth Cir-

cuit’s conclusion to the contrary cannot be sustained.

The undisputed evidence established that Sergeant De-

venpeck reviewed the text of the Privacy Act while at the

scene. Tr. 312. He then called a trooper in order to obtain

the phone number of the deputy prosecutor, whom he had to

telephone twice before finally reaching him at home. Jd. at

314. Devenpeck read the text of the Act to the prosecutor

over the phone, and the prosecutor seconded Devenpeck’s

judgment that the arrest of Alford was supported by probable

cause. Jd. at 316. As Judge Gould recognized, the officers

“reasonably believed Alford’s tape recording of the traffic

stop was outlawed by the Washington Privacy Act,” and their

conduct “provided an example of how a responsible and fair-

minded officer should proceed deliberately when unfamiliar

with the law a person is or may be violating.” 333 F.3d at

980.

9 Clark involved the reverse situation of that presented here: in Clark,

the officers had taped the suspects’ interactions with a police informant,

and the suspects sought to suppress the recordings under the Privacy Act.

“Federal officials will not be liable for mere mistakes in

judgment, whether the mistake is one of fact or one of law,”

Butz v. Economou, 438 U.S. 478, 507 (1978), and the fact

that the prosecutor agreed that Alford violated the Privacy

Act is an objective benchmark indicating that the officers’

mistake of law was a reasonable one. That the officers were

unaware of the Flora decision cannot render their conduct

objectively unreasonable. The officers looked to the best

source of authority available—the statute itself—and con-

firmed their probable cause assessment with an attorney pre-

sumably an expert in criminal law—the prosecutor. They

trusted the prosecutor’s judgment. This Court has long “rec-

ognized the need to allow some latitude for honest mistakes

that are made by officers in the dangerous and difficult proc-

ess of making arrests.” Maryland v. Garrison, 480 U.S. 79,

87 (1987). Because “[u]nder settled law, [Devenpeck and

Haner] are entitled to immunity if a reasonable officer could

have believed probable cause existed to arrest [Alford],”

Hunter, 502 U.S. at 228, the Ninth Circuit’s denial of immu-

nity must be reversed.

CONCLUSION

For the foregoing reasons, the judgment of the Ninth

Circuit should be reversed.

Respectfully submitted.