Amicus Curiae Brief — Devenpeck v. Alford

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No. 03-710

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IN THE

Supreme Court of the Gnited States

GERALD DEVENPECK, ef al..

Petitioners,

V.

JEROME ANTHONY ALFORD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

PAMELA HARRIS JONATHAN D. HACKER

NAT'L ASS’N OF CRIMINAL (Counsel of Record)

DEFENSE LAWYERS SHANNON M. PAZUR

Co-Chair, Amicus Committee O’MELVENY & MYERS LLP

1625 Eye Street, N.W. 1625 Eye Street, N.W.

Washington, D.C. 20006 Washington, D.C. 20006

(202) 383-5300

Attorneys for Amicus Curiae

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i

QUESTION PRESENTED

Whether an arrest that violates the Fourth Amendment —

because the specific and articulable facts that impelled the

arrest did not establish objective probable cause to believe

the charged offense had been committed — can be justified

post hoc on the basis of facts and offenses unrelated to the

facts and offenses that impelled the initial arrest.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............cccssessesserseneeseeaceenseneesnsesnens i

TABLE OF AUTHORITIES ..ccccccsescecccoscoscsccccccccccssesescstecss iil

INTEREST OF AMICUS CURIAE .............cccccceeeeeeseeeeeeeeees ]

SUMMARY OF ARGUMENT .................:::eeeeeeseeees ania l

NCA | | a 3

I. BECAUSE OFFICER HANER LACKED

PROBABLE CAUSE FOR BELIEVING

THAT RESPONDENT VIOLATED THE

PRIVACY STATUTE, RESPONDENT’S

ARREST WAS UNLAWFUL ................ccceseeeeeeseeeees 3

A. The Fourth Amendment Requires

Courts To Assess Probable Cause For

An Arrest On The Basis Of The Par-

ticularized Facts That Objectively Jus-

AGiad Tike AGIOS ccccessss teenie 4

B. The Closely Related Offense Doctrine

Is Consistent With The Fourth

Amendment Standard Of “Objective

PReRBORISIGES cccceccecuscsscnessocemndineenennnna 14

C. The Closely Related Offense Doctrine

Is Supported By Sound Policy ...............-0++ 15

Il. THE QUALIFIED IMMUNITY QUESTION

RAISED BY PETITIONERS IS NOT

PROPERLY BEFORE THE COURT..................... 20

CLIO ccccccsccccesecccccssecsessocossontiossesssansnsnaaanannn 23

iil

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Creighton,

reel 21, 22

Avery v. King,

BO ame Oe UN Gls BOO Pircccccescescccsccsccccsnsssesscesces 16, 17

Beck v. Ohio,

iain ccnarttinanemcccnes 8,9, 10

Biddle v. Martin,

ne 16, 17

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821)........ccccccesccecsessessecescenees 12

Delaware v. Prouse,

eee 8

Florida v. Royer,

sills 11,12

Hiibel v. Sixth Judicial Dist. Ct.,

TT 8

Humphrey's Ex'r v. United States,

ee 12

Indianapolis v. Edmond,

ee 10

Kokkonen v. Guardian Life Ins. Co. of Am.,

TS 12

Mills v. Wainwright,

a 16

Montana v. Egelhoff,

518 US. $7 (1966) iasisntedantihleniantpaeenenineatenasnetnteaseneeseneen 12

Ornelas v. United States,

Te 10

iV

Peters v. New York, decided with Sibron v.

New York,

te Se incnitescccnenecinnianiniseinptinsenmnimenbiniiniaians 12

Scott v. United States,

SEIT icvacsinnsinisitccnnisceieinniinceiispepenenianbiinnniite 11, 13

Seminole Tribe v. Florida,

cg | Eee 12

Sheehy v. Town of Plymouth,

ae ey I IE itcitcinstnccnitesisineiuciininiiianinnciaaienie 17

Stacey v. Emery,

gg ERNE revene nemo 5,7

Terry v. Ohio,

IS iittala 8, 10

Trejo v. Perez,

Se rene 17, 18

United States v. Atkinson,

} & | ye , |) Serene 16, 17

United States v. Brignoni-Ponce,

RS Sen ne I EN, i)

United States v. Cortez,

LET Meee rere s

United States v. Di Re,

EERE een ener e Br x

United States v. Kalter,

I, i 17

United States v. Rambo,

ee 17

United States v. Robinson,

ESTE ee ea reeset ear 11,14

Vance v. Nunnery,

137 F.3d 270 (Sth Cir. 1998).............cccccc00e 15, 16, 17, 18

Wainwright v. New Orleans,

SG 19

Vv

Whren v. United States,

gE ee 5, 6

Wilson v. ’

Be eT ccnecsrerneinsiiniinninnmmieniniieibiiaiiiindiipimasbiie 22

Wong Sun v. United States,

re Cs te i icicntraninccncninassentemneniantatedinianiiindinasbiel 8

STATUTES

725 Ill. Comp. Stat. Ann. 5/103-1(0) ..........ccccsceeseeeeeeeeeenees 19

Ken. Rev. Stat. Ann. § 431.025(1)............::ccscccssescsercesereees 19

Rs TD: GET ccseirrnsisenteneniennteiinnnanaiaiitienbasmssadiadiiaaiinaitiiesdiias 19

a Be, GR, Bt cectcrcenencscnassescssmminmemninationion 19

a Gee en, B Fae ccenereenmscnansnneiatineninemanestnssiiinn 19

ee ae BB FI ccrenesensstscncenetntneremeemasenien 19

|

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CU-

RIAE IN SUPPORT OF RESPONDENT

This brief is submitted on behalf of the National Associa-

tion of Criminal Defense Lawyers as amicus curiae in sup-

port of respondent.’

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense Lawyers

(“NACDL”) is a non-profit organization with direct national

membership of over 10,000 attorneys, in addition to more

than 28,000 affiliate members from every state. Founded in

1958, NACDL is the only professional bar association that

represents public and private criminal defense lawyers at the

national level. The American Bar Association recognizes

NACDL as an affiliated organization with am representation

in the ABA House of Delegates.

NACDL’s mission is to ensure justice and due process

for the accused; to foster the integrity, independence, and

expertise of the criminal defense profession; and to promote

the proper and fair administration of criminal justice, includ-

ing the protection of Fourth Amendment liberties. NACDL

has frequently filed amicus curiae briefs in this Court in

cases implicating its substantial interest in safeguarding the

individual liberties guaranteed by the Fourth Amendment.

See, e.g., Kyllo v. United States, 533 U.S. 27 (2001); Bond v.

United States, 529 U.S. 334 (2000); Indianapolis v. Edmond,

531 U.S. 32 (2000).

SUMMARY OF ARGUMENT

I. Respondent was arrested on the basis of facts estab-

lishing conduct that is not unlawful in the state of Washing-

' Pursuant to Rule 37, letters of consent from the parties have been

filed with the Clerk of the Court. No counsel for a party authored this

brief in whole or in part, and nobody other than amicus, its members, or

its counsel contributed monetarily to the brief.

2

ton. That arrest cannot be justified post hoc on the basis of

other facts that were not the true grounds for his arrest, but

that could have justified an arrest for a different, wholly un-

related offense. In requiring petitioners to justify the arrest

only on the basis of the conduct and offense for which peti-

tioner was arrested — or at least on the basis of some closely

related offense — the court of appeals adhered to fundamental

Fourth Amendment principles prohibiting police officers

from intruding on a private citizen’s personal liberty unless .

the individual officer has an individualized basis for believ-

ing that the private citizen has committed a particular of-

fense. Contrary to petitioners’ submission, the “closely re-

lated offense” doctrine applied by the court of appeals does

not require courts to inquire into the subjective motives of

individual arresting officers and thus is not inconsistent with

precedents prohibiting such inquiries. Rather, the doctrine

avoids such inquiries by focusing on the objective facts and

circumstances justifying an arrest, including the objectively

stated grounds for an arrest. The doctrine thereby advances

sound Fourth Amendment and law enforcement principles:

it excuses purely technical mistakes in charging by allowing

the state to rely on closely related offenses to justify an arrest

(further reinforcing the focus on the objective circumstances)

while precluding the state from surprising a defendant with

post hoc rationalizations for an arrest that could not be le-

gally justified on its own terms.

II. If the Court holds that petitioners cannot justify their

arrest on the basis of an offense unrelated to the offense for

which respondent was arrested, the Court should not address

the distinct qualified immunity issue petitioners also seek to

raise. Petitioners incorrectly characterize that issue as

whether the close related offense doctrine was established

with sufficient clarity to hold them liable for the arrest. Nei-

ther petitioners nor the courts below addressed the qualified

immunity question in those terms. Rather, petitioners and

both the majority and dissenting opinions assumed the ques-

3

tion was whether petitioners had sufficient notice that re-

spondent’s arrest was unlawful under the Washington Pri-

vacy Act. And that question, in turn, is resolved by the jury

instruction — unchallenged by petitioners — that it was

“clearly established” at the time of the arrest that respon-

dent’s conduct did not violate the Privacy Act. Accordingly,

the qualified immunity issue briefed by petitioners is not

properly presented and should not be addressed by the Court.

ARGUMENT

I. BECAUSE OFFICER HANER LACKED PROB-

ABLE CAUSE FOR BELIEVING THAT RESPON-

DENT VIOLATED THE PRIVACY STATUTE, RE-

SPONDENT’S ARREST WAS UNLAWFUL

Petitioners arrested respondent for violating the Wash-

ington Privacy Act, Wash. Rev. Code Ann. § 9.73.030(1)(b),

because respondent was taping his conversation with Officer

Haner without Haner’s consent. The Privacy Act charge was

later dismissed as groundless, and the district court in this

case rurther determined — and the jury was instructed — that it

was “clearly established” at the time of the arrest that “the

conduct for which [respondent] was arrested was not a viola-

tion of the Privacy Act.” Pet. App. 10a. Petitioners did not

challenge on appeal, and do not challenge in this Court, the

propriety of this jury instruction.

It is thus undisputed that petitioners lacked probable

cause to arrest respondent for violating the Privacy Act. Ac-

cording to petitioners, however, respondent’s arrest was nev-

ertheless lawful, because petitioners would have had prob-

able cause to arrest for him for an entirely unrelated offense,

if they had arrested him for that offense. Petitioners contend

that the actual, asserted basis for the arrest is utterly immate-

rial under the Fourth Amendment. All that matters, they say,

is whether a hypothetical, reasonable officer in the same

situation would have had probable cause to arrest respondent

for any offense.

4

Petitioners are wrong. Their argument depends funda-

mentally on a mistaken conflation of an individual officer’s

subjective motives for an arrest with the objective basis in

fact for the arrest. The motives of an individual officer are

indeed irrelevant under the Fourth Amendment, as this Court

has held since its earliest days. But that is far different from

holding that the factual basis for an arrest is irrelevant to

Fourth Amendment analysis. It is not. As we elaborate be-

low, this Court’s Fourth Amendment jurisprudence estab-

lishes that before a police officer may arrest a person for an

offense, the officer must have probable cause, supported by

particularized facts, for believing that the person committed

an offense. If the particularized facts that justified the arrest

do not establish probable cause for believing that the person

committed the offense (or one closely related), then the ar-

rest was not justified and therefore was not lawful. The

prosecutor cannot cure that unlawful arrest post hoc by

pointing to other facts that were not the objective basis for

the arrest, but that would have justified an arrest on entirely

different and unrelated grounds.

Motives may not matter in Fourth Amendment analysis.

But facts do. The facts that led to an arrest either established

probable cause for that arrest or they did not. If they did,

then the arrest is lawful, even if the officer had bad motives

for making the arrest. If they did not, then the arrest is

unlawful, even if the prosecutor can later point to different

facts that could have justified a different arrest.

A. The Fourth Amendment Requires Courts To As-

sess Probable Cause For An Arrest On The Basis

Of The Particularized Facts That Objectively Jus-

tified The Arrest

1. Petitioners’ attack on the closely related offense doc-

trine starts — and basically ends — w ‘th the premise that prob-

able cause is assessed by a test of “objective reasonable-

ness,” which “applies without regard to the motives of the

5

officers involved.” Petrs. Br. 17; see also U.S. Br. 11. Ac-

cording to petitioners, that principle resolves this case: it is

irrelevant that Officer Haner mistakenly identified the Pri-

vacy Act as a basis for the arrest, they say, because Officer

Haner’s subjective intent in arresting respondent is irrelevant

to the probable cause inquiry.

That analysis rests on a misreading of this Court’s cases

addressing subjective motives in the Fourth Amendment

context. What those cases hold is that, so long as the officer

specifies an objectively reasonable basis for an arrest, a court

cannot engage in a “pretext” inquiry to determine whether

the officer was actually motivated by a different, malicious

or unlawful reason for making the arrest. In Stacey v. Em-

ery, 97 U.S. 642 (1878), for instance, a tax collector had

seized the plaintiff's property on the asserted ground that it

was part of a tax fraud scheme. The plaintiff argued that the

seizure was actually motivated by malice against the plain-

tiff. This Court responded:

This is an error. The question of malice or of good

faith is not an element in this case. It is not a question

of motive. If the facts and circumstances before the

officer are such as to warrant a man of prudence and

caution in believing that the offence has been commit-

ted, it is sufficient. Whether the officer seized the oc-

casion to do an act which would injure another .. . is

quite immaterial.

Id. at 645. Phrased otherwise, the Court explained, all that

matters is whether there were “circumstances sufficiently

strong in themselves to warrant a cautious man in the belief

that the party is guilty of the offence with which he is

charged.” /d. (internal quotation marks omitted).

This rule precluding inquiry into whether the basis for an

arrest was pretextual is the rule applied in Whren v. United

States, 517 U.S. 806 (1996), the case on which petitioners

and their amici so heavily rely. In Whren, the officer pulled

6

a car over on the asserted ground that the driver committed

traffic violations. It was not disputed that the officer had

probable cause for that action. /d. at 810. The defendants,

however, sought to show that the traffic violation was a mere

pretext for the officer's “real” motive, i.¢., to conduct a

search for drugs, or simply because the occupants were

black, motives that would not give probable cause for the

stop. This would be consistent, they argued, with the Court’s

“past cases’ disapproval of police attempts to use valid bases

of action against citizens as pretexts for pursuing other inves-

tigatory agendas.” Jd at 811. The Court rejected this ap-

proach, holding instead that the prior cases “foreclose any

argument that the constitutional reasonableness of traffic

stops depends on the actual motivations of the individual of-

ficers involved.” Jd. at 813. Further, the Court held that the

defendants could not seek to inquire into the officer’s subjec-

tive motives through the ostensibly “objective” device of

showing that a “reasonable otficer” would not have made the

stop. /d. at 813-14. That approach, the Court explained, still

reflects an impermissible effort to prove that the stop was

pretextual:

Its whole purpose is to prevent the police from doing

under the guise of enforcing the traffic code what they

would like to do for different reasons. Petitioners’

proposed standard may not use the word “pretext,” but

it is designed to combat nothing other than the per-

ceived “danger” of the pretextual stop, albeit only in-

directly and over the run of cases. Instead of asking

whether the individual officer had the proper state of

mind, the petitioners would have us ask, in effect,

whether (based on general police practices) it is plau-

sible to believe that the officer had the proper state of

mind.

Id. at $14.

The difference between this case and cases such as Sta-

7

cey and Whren, and all the cases discussed in Whren, is self-

evident. In each of those cases, the officers at least had an

objectively lawful and supportable “pretext” for the search or

seizure when it was conducted. Not so here. Indeed, to the

contrary, the cited “pretext” for the arrest — the Privacy Act

charge — in this case was concededly unlawful and not sup-

ported by the facts that formed the basis for the arrest. If the

asserted basis for the arrest is what the Fourth Amendment

cares about, as the Stacey-Whren principle suggests, then the

arrest in this case plainly violated the Fourth Amendment.

This case, in other words, has nothing whatsoever to do

with whether or not the grounds for the arrest were a “pre-

text” for an ulterior motive. We may concede that the officer

had no ulterior, unlawful motive in arresting respondent for

violating the Privacy Act. But petitioners must concede that

it was unlawful to arrest respondent on that basis. The ques-

tion here is whether the arrest can be justified post hoc on

some other basis that would have been lawful, if respondent

had been arrested on that ground.

2. This Court’s precedents indicate that the answer to

that question must be no. As the Court in Stacey described

the reasonableness inquiry, the question is whether the facts

would support a reasonable officer in concluding “that the

party is guilty of the offense with which he is charged.” Sta-

cey, 97 U.S. at 645 (emphasis added). In several respects,

the precedents establish that the question whether an officer

had probable cause to arrest a person for a particular offense

should be determined with respect to the facts that justified

the arrest for that offense (or one closely related), rather than

by scouring the record post hoc for other facts that could

have justified an arrest for other, unrelated offenses.

To start, this Court’s precedents demand that the individ-

ual police officer who made the arrest (or stop or search) be

able to “justify[] the particular intrusion” by “point[ing] to

specific and articulable facts which, taken together with ra-

tional inferences from those facts, reasonably warrant that

8

intrusion.” Terry v. Ohio, 392 U.S.-1, 21 (1968). “This de-

mand for specificity in the information upon which police

action is predicated is the central teaching of this Court’s

Fourth Amendment jurisprudence.” Jd at 22 n.18; see

United States v. Cortez, 449 U.S. 411, 418 (1979). This re-

quirement obviously is not imposed as an academic exercise

—a sort of after-the-fact game of find-the-facts-to-justify-the-

intrusion-on-liberty. The requirement is, rather, a demand

placed on each officer in the field: do not stop or arrest citi-

zens unless there are specific and articulable facts that give

you a basis for doing so. Cf United States v. Di Re, 332

U.S. 581, 595 (1948) (“It is the officer’s responsibility to

know what he is arresting for, and why... .”).

Consistent with that principle, the cases instruct courts to

inquire not into the sufficiency of the facts that might have

justified the officer’s intrusion, but into the facts that did jus-

tify the officer’s intrusion. Thus in Terry, the Court de-

scribed “reasonableness” in the probable cause inquiry as

“whether the officer’s action was justified at its inception,

and whether it was reasonably related in scope to the circum-

stances which justified the interference in the first place.”

Terry, 392 U.S. at 20 (emphasis added); see Hiibel v. Sixth

Judicial Dist. Ct., 124 S. Ct. 2451, 2459-60 (2004). Simi-

larly, in Wong Sun v. United States, 371 U.S. 471, 480

(1963), the Court described the “threshold” question as

“whether the officers could, on the information which im-

pelled them to act, have procured a warrant for the arrest of

[a suspect].” Jd. at 480 (emphasis added). In Delaware v.

Prouse, 440 U.S. 648, 654 (1979), the Court emphasized the

Fourth Amendment’s requirement in all seizure cases “that

the facts upon which an intrusion is based be capable of

measurement against ‘an objective standard,’ whether this be

probable cause or a less stringent test.” Jd. at 654 (emphasis

added). And in Beck v. Ohio, 379 U.S. 89 (1964), the Court

warned that unless the trial court is “informed of the facts

upon which the arresting officers acted,” the court “cannot

9

properly discharge [its] function” of reviewing the constitu-

tional validity of the arrest.” Jd. at 96 (emphasis added).

There was no suggestion in any of these cases that the of-

ficers could point to other circumstances or information

which did not impel them to act, but which could have justi-

fied action. In United States v. Brignoni-Ponce, 422 U.S.

873 (1975), the Court was even clearer, explicitly rejecting

the Government's effort to justify an otherwise unlawful stop

on the basis of record facts that could have justified the stop:

The Government also argues that the location of this

stop should be considered in deciding whether the of-

ficers had adequate reason to stop respondent’s car.

This appears, however, to be an after-the-fact justifica-

tion. At trial the officers gave no reason for the stop

other than the apparent Mexican ancestry of the car’s

occupants.

Id. at 886 n.11.

This fundamental requirement that the individual officer

be able to point to the specific and articulable facts that justi-

fied his action at the time (whatever his ulterior motives)

loses force if the inquiry becomes whether any of the sur-

rounding facts could have justified the same action in theory.

Indeed, even the logic of the requirement becomes dubious:

it can be important that the officer be able to identify specific

and particularized facts only if they are specific and particu-

larized as to something. Clearly, the assumption underlying

the precedents is that the facts be particularized fo the offense

for which the person was arrested. And requiring that the

officer who made the arrest be able to identify those facts

shows that it matters what facts impelled that officer, at that

time, to act.

Under the standard urged by petitioners, however, the

facts that impelled the action are irrelevant. All that matters

is whether there are any facts that could have impelled an

intrusion. Under this standard, police officers on the scene

10

have much less incentive to consider whether the facts spe-

cifically justify an intrusion on a citizen’s liberty. Secure in

the knowledge that a prosecutor will scour the record post

hoc to identify facts and offenses that would justify an intru-

sion (with the officer's recollections of the circumstances

influenced by the new offenses identified as possible

grounds for the arrest),” officers will be more likely to act on

the basis of generalized suspicion of wrongdoing than on a

particularized suspicion of criminal activity. Cf Jndianapo-

lis v. Edmond, 531 U.S. 32 (2001) (“We cannot sanction

stops justified only by the generalized and ever-present pos-

sibility that interrogation and inspection may reveal that any

given motorist has committed some crime.”); Terry, 392

U.S. at 21 (this Court has “consistently refused to sanction”™~

“intrusions upon constitutionally guaranteed rights based on

nothing more substantial than inarticulate hunches”).

This is not say that the Court has condoned inquiry into

the individual officer’s actual motives for making an arrest

on a given basis. It is to say, however, that the Fourth

Amendment principles recognized by this Court do care

about the facts and circumstances invoked to justify an ar-

rest. As petitioners concede, an arrest may be justified only

upon the basis of facts actually within the knowledge of the

arresting officer. Petrs. Br. 16. What is more, this Court’s

cases have made clear that the court may consider the indi-

vidual officer’s own personal, subjective experiences in de-

termining whether the officer had probable cause. See, e.g.,

Ornelas v. United States, 517 U.S. 690, 700 (1996). All

must agree. in other words, that the perspective of the arrest-

ing officer is not utterly irrelevant for Fourth Amendment

purposes. The Fourth Amendment question is whether that

officer, based on what that officer personally experienced

? See Beck, 379 U.S. at 96 (“an after-the-event justification for the

arrest or search [is] too likely to be subtly influenced by the familiar

shortcomings of hindsight judgment”).

1]

and knew, had a basis for the action that officer actually

took. Although that question is evaluated from the objective

perspective of a reasonable officer, the question is not

whether a reasonable officer could have taken a different ac-

tion. It is whether a reasonable officer could have taken the _

same action. Thus, if the individual officer arrested a person

on the basis of specific, particularized facts showing that he

was taping a conversation with the police officer, the Fourth

Amendment question is whether a reasonable officer would

have arrested a person on that basis. If the answer is no, it is

irrelevant whether a reasonable officer could have pointed to

other facts justifying an arrest on an entirely different basis.

3. We have already shown why Whren and other cases

precluding inquiry into “pretext” do not compel a contrary

result. In the end, petitioners’ position rests on statements in

three opinions: Florida v. Royer, 460 U.S. 491 (1983), Scott

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

Robinson, 414 U.S. 218 (1973). None of these cases pro-

vides them adequate support.

a. Petitioners point to a single statement in the plurality

opinion in Royer: “[T]he fact that the officers did not be-

lieve there was probable cause and proceeded on a consen-

sual or Terry-stop rationale would not foreclose the State

from justifying Royer’s custody by proving probable

cause[.]” 460 U.S. at 507. For three reasons, this statement

does not authorize after-the-fact rationalizations of otherwise

unlawful arrests.

First, the statement is unambiguously dictum. In Royer,

a plurality of the Court held that the respondent was illegally

detained when he consented to have his luggage searched,

and therefore the resulting search was illegal. 460 U.S. at

507-08. The plurality’s comment that the state could prove

probable cause despite the arresting officer’s belief that

probable cause was lacking had nothing to do with the hold-

ing, outcome, or analysis in Royer. This Court has repeat-

edly warned that such statements are of no controlling force:

12

“It is to the holdings of our cases, rather than their dicta, that

we must attend.” Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 379 (1994); see Montana v. Egelhoff,

518 U.S. 37, 56 (1996); Seminole Tribe v. Florida, 517 U.S.

44, 66-67 (1996); Humphrey's Ex'r v. United States, 295

U.S. 602, 627 (1935); Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 399 (1821).

Second, although statements in dictum can be persuasive

authority to the extent they are soundly reasoned, the Royer

dictum is conclusory and supported by a dubious citation.

Royer cites Peters v. New York, decided with Sibron v. New

York, 392 U.S. 40, 66-67 (1968), in which the Court held

admissible the fruits of an off-duty policeman’s search of a

burglary suspect. In Peters, a police officer personally ob-

served conduct that reasonably caused him to be suspicious

of the suspect’s activities and to fear that he was in danger.

Id. at 48. Accordingly, the officer’s arrest and search of the

suspect was found to be supported by probable cause. /d. at

66. Nothing in the record indicated that the police officer

believed he lacked probable cause to stop and search the

suspect. Accordingly, Peters does not support the proposi-

tion set forth in Royer.

Third, even on its own terms, it is not clear that the

statement actually endorses the kind of sweeping post hoc

justification for arrests urged by petitioners. The statement

in Royer merely observes that the officers believed that they

did not have probable cause to detain the traveler for suspi-

cion of criminal activity. It is possible, however, that the

officers did have a particularized basis in fact for suspecting

that an offense had been committed, but merely mistakenly

believed that those facts, as matter of law, did not add up to

probable cause. But at least in that scenario, the question

could be whether a reasonable officer would be justified in

arresting on the basis of those same particularized facts.

Here, by contrast, the question is whether the State could

point to a set of entirely unrelated facts as establishing prob-

13

able cause for an arrest that had nothing to do with those

facts.

For all these reasons, Royer does not compel rejection of

the “closely related offense” doctrine.

b. Petitioners also rely on the statement in Scoft that “the

fact that the officer does not have the state of mind . . . hy-

pothecated by the reasons which provide the legal justifica-

tion for the officer’s action does not invalidate the action

taken as long as the circumstances, viewed objectively, jus-

tify that action.” 436 U.S. at 138. But in Scott — unlike this

case — the officers did provide from the very outset an ade-

quate “legal justification” for their action: telephone calls

were being intercepted consistent with the purpose of the

wiretap, with minimized interference with calls unrelated to

that purpose. The defendant in Scott was complaining that

the officers did not, in fact, adequately try to minimize inter-

ference, and thus could not justify the wiretaps by showing

that there was no actual interference. It was in this context

that the Court pointed out that the officers’ state of mind was

irrelevant: the wiretaps and amount of interference were

consistent with the purpose of the wiretaps, and thus what-

ever else the officers were thinking (or not thinking) when

they monitored the calls, the search was not objectively un-

reasonable.

If anything, the analysis in Scott supports the closely re-

lated offense doctrine. The key to the Court’s opinion was

that the interference was objectively consistent with the

stated purpose of the wiretaps. Like other Fourth Amend-

ment precedents, Scott holds that the search was justified be-

cause the objective facts and circumstances were consistent

with the basis for the search. Here, by contrast, petitioners

contend that the objective facts were consistent with some

other basis for an arrest. Scott does not support that position.

c. Finally, petitioners cite Robinson, but again their reli-

ance is misplaced. The Court in Robinson noted in passing

14

that a police officer’s authority to conduct a search incident

to a lawful arrest is unaffected by his lack of either “subjec-

tive fear” or a belief that the arrestee was armed. Robinson,

414 US. at 236. This observation merely confirms the prin-

ciple, discussed above, that a police officer’s subjective mo-

tive for a search does not render it illegal if the asserted basis

for the search is objectively reasonable. Because the actual

basis for the search in Robinson was as an incident to a law-

ful arrest, the officer’s motive or state of fear were irrelevant.

Here, by contrast, the asserted basis for the arrest was an ob-

jectively unreasonable alleged Privacy Act violation. Robin-

son does not validate that arrest in any way.

B. The Closely Related Offense Doctrine Is Consis-

tent With The Fourth Amendment Standard Of

“Objective Reasonableness”

Contrary to petitioners’ submission, the “closely related

offense” doctrine is perfectly consistent with this Court’s

precedents holding that an officer’s motive for making an

arrest is irrelevant, so long as the objective, asserted basis for

the arrest is supported by the facts and law. Under this

Court’s cases, when an arrest is made, the articulated basis

for that arrest is accepted at face value in order to avoid sub-

jective inquiries. That articulated basis is an objectively as-

certainable fact, not a subjective motive or experience. As a

result, under the “objectively reasonable” test, the question is

simply whether the objective circumstances support the as-

serted basis for the arrest.

The closely related offense doctrine advances this princi-

ple beccuse it maintains focus on the totality of the objective,

relevant circumstances. If an officer is (subjectively) mis-

taken about the precise offense for which the arrest was

made, that does not invalidate the arrest if the facts and law,

viewed objectively, support the officer’s conclusion that the

particular conduct at issue justified an arrest. The doctrine

accomplishes this end by focusing on the conduct for which

15

the defendant was arrested — so long as some offense closely

related to the offense specified renders the underlying con-

duct unlawful, the officer had an objective basis for arresting

for that conduct, and the arrest is valid on that basis. In other

words, the doctrine is indifferent to the subjective reasons

behind the officer’s articulation of the offense, whether the

result of ignorance, good faith mistake, bad faith motive, or

anything in between. As such, the doctrine represents an ap-

plication, not a rejection, of the “objective reasonableness”

standard.

C. The Closely Related Offense Doctrine Is Sup-

ported By Sound Policy

The closely related offense doctrine also advances sound

law enforcement policies, contrary to petitioners’ contention.

1. To start, it is important to understand the true back-

ground and function of the doctrine. The Solicitor General

claims that “it is designed to prevent officers from ‘jus-

tify[ing] what from the outset may have been actually sham

or fraudulent arrests on the basis of ex post facto justifica-

tions that turn out to be valid.”” U.S. Br. 12 (emphasis

added) (quoting Vance v. Nunnery, 137 F.3d 270, 275 (Sth

Cir. 1998)). That is incorrect. The doctrine does have the

salutary effect of preventing post hoc justifications for arrests

that were invalid on their own terms, but the purpose of the

doctrin is not to invalidate objectively lawful arrests. Just

the opposite is true: the closely related offense doctrine was

devised, and has been most commonly employed, to validate

arrests that could objectively be justified on the relevant

facts, even though the police officer erred in specifying the

precise grounds for the offense. In other words, in the face

of a challenge to the validity of an arrest or a civil rights law-

suit seeking damages from an officer, the courts have af-

forded officers greater, not lesser, protection than that which

was available in the absence of the doctrine.

—

16

The Fifth Circuit was the first court to develop and em-

ploy the “closely related offense” doctrine. Its early cases

make clear that the court intended to give officers a certain

amount of leeway for technical mistakes in articulating the

basis for an arrest: “{W]e want it well understood that when

a crime under which the arrest is made and a crime for which

probable cause exists are in some fashion related, then there

is no question but that there is a valid arrest.” Mills v.

Wainwright, 415 F.2d 787, 790 (Sth Cir. 1969). As the court

explained in United States v. Atkinson, 450 F.2d 835 (Sth

Cir. 1971), the rule assured the constitutionality of such ar-

rests without forcing police officers to “routinely charge

every citizen taken into custody with every offense they

thought.he could be held for in order to increase the chances

that at least one charge would survive the test for probable

cause.” Jd at 838. The rule did preclude the “retroactive[]

validat[ion]” of an arrest through “ex post facto extrapola-

tions of all crimes that might have been charged on a given

set of facts at the moment of arrest,” id., but this limitation —

required as a practical matter by this Court’s precedents, see

supra at 7-10 — was the effect of the rule, not its motivating

purpose. '

As the rule has been further developed and applied in

other circuits, it has become even clearer that its true func-

tion is to provide a margin of error for officers, not to estab-

lish “a game that the arrestee wins,” Petrs. Br. 23. See, e.g.,

Vance, 137 F.3d at 275 (doctrine “designed to protect police

officers from civil liability for reasonable mistakes in judg-

ment made when they effect warrantless arrests for conduct

they believe is criminal”); Avery v. King, 110 F.3d 12, 14

(6th Cir. 1997) (“even where there is no probable cause to

arrest the plaintiff for the crime charged, proof of probable

cause to arrest the plaintiff for a related offense is also a de-

fense which may entitle the arresting officer to qualified im-

munity”); Biddle v. Martin, 992 F.2d 673, 676 (7th Cir.

1993) (“in § 1983 actions for false arrest, probable cause

17

need not have existed for the charge for which the plaintiff

was arrested, so long as probable cause existed for arrest on

a closely related charge”); United States v. Rambo, 789 F.2d

1289, 1294 (8th Cir. 1986) (“It is immaterial that at the time

of the . . . arrest the officers did not have in mind the specific

charge upon which the arrest can be justified; the offenses

need only be closely related... .”); Sheehy v. Town of Ply-

mouth, 191 F.3d 15, 20 (1st Cir. 1999) (“An officer’s erro-

neous legal description of the basis for an arrest should not

expose the officer to liability if another officer would have

concluded that there was probable cause to arrest for a re-

lated offense on the basis of the same conduct.”’).

To be sure, the doctrine preserves the Fourth Amendment

guarantee of freedom from unreasonable seizure in the nar-

row subset of cases in which the charged and uncharged of-

fenses are wholly unrelated. But the reality is that the doc-

trine is used predominantly as a shield by law enforcement

rather than as a sword by arrestees — salvaging arrests and

insulating police ufficers from liability where the arrest oth-

erwise would fail due to a lack of probable cause on the

charged offense. See Trejo v. Perez, 693 F.2d 482, 486 (Sth

Cir. 1982) (arrest valid because offenses were related); Aj-

kinson, 450 F.2d at 838 (same); Biddle, 992 F.2d at 676

(same); Avery, 110 F.3d at 14 (same); United States v. Kal-

ter, 5 F.3d 1166, 1168 (8th Cir. 1993) (same); Rambo, 789

F.2d at 1294 (same).

2. Although the central purpose of the closely related

doctrine is “to protect police officers from civil liability,”

Vance, 137 F.3d at 275, courts have accomplished this goal

by “strik[ing] a balance which allows the arresting officer to

choose which crime she will charge without having to charge

every single offense sustainable on the facts, and yet does

not ‘open{] the door to the “extrapolation” of offenses in an

effort to justify a sham arrest.’”” Biddle, 992 F.2d at 676-77

(quoting Trejo, 693 F.2d at 485). This “carefully constructed

‘compromise”” has the effect of permitting “freedom of

18

charge choice,” 7rejo, 693 F.2d at 485-86, while encourag-

ing police officers to make arrests only when they have a

valid basis for doing so. Cf Vance, 137 F.3d at 275 (quoting

Gassner v. Garland, 864 F.2d 394, 398 (Sth Cir. 1989))

(doctrine discourages “sham or fraudulent arrests on the ba-

sis of ex post facto justifications that turn out to be valid”).

In achieving this equilibrium, “the federal courts have both

grasped the realities of modern law enforcement and pro-

tected our Fourth Amendment freedoms.” - Vance, 137 F.3d

at 275.

Petitioners, however, would have the courts go much fur-

ther, tipping the balance entirely in favor of the police. In-

voking a parade of horribles, they warn that if this Court en-

dorses the closely related defense doctrine, police will over-

charge or not charge at all, and prosecutors will be paralyzed

in their discretionary charging decisions. See Petrs. Br. 24-

25, see also U.S. Br. 19-20. Petitioners, however, do not cite

any evidence that these alleged horrors have actually befallen

the many jurisdictions that have been employing the doctrine

for decades. The lack of evidence is hardly surprising, for

petitioners’ policy concerns do not even make logical sense.

a. First, there is no basis for the claim that the closely re-

lated offense doctrine harms arrestees by causing law en-

forcement to overcharge. As already explained, courts have

properly struck the balance where they have precisely to

avoid the necessity of charging every conceivable offense.

By excusing technical errors regarding the precise offense

most applicable to the conduct that caused the arrest, the

doctrine ensures that officers need not worry over every last

detail in the booking document to ensure preservation of the

arrest. It is only post hoc reliance upon entirely unrelated

charges that the doctrine precludes. Limiting post hoc justi-

fications to the booked offense (or one closely related) would

not “frustrate any legitimate interest of society” because if

the officers had probable cause to arrest a citizen on a wholly

unrelated offense, “all they had to do was to arrest and book

19

him” on that charge. Wainwright v. New Orleans, 392 U.S.

598, 606 (1968) (Warren, C.J., dissenting from dismissal of

writ). And contrary to petitioners’ absurd suggestion, Petrs.

Br. 24 n.5; see also U.S. Br. 19-20, criminal defendants ob-

viously would not prefer a system that allows the govern-

ment to obscure the basis for an arrest and to surprise defen-

dants later with new theories of criminal conduct and new

justifications for the arrest. A defendant is plainly better off

receiving notice of the bases for his arrest as early as possi-

ble (and planning his defense accordingly), rather than hav-

ing after-the-fact justifications sprung upon him later.

b. Second, it is equally untrue that the closely related of-

fense doctrine harms defendants by causing police to avoid

charging at all. Even if the doctrine did lead inevitably to

that result, it is hardly clear that defendants are better off

with a system that allows police to arrest on a wholly unrea-

sonable basis, only to salvage the arrest with an entirely un-

related after the fact justification. Indeed, an arrestee is more

likely to be cautious in his dealings with police if they refuse

to divulge any basis for the arrest. By contrast, one charged

on unreasonable or sham grounds might reasonably believe

unrelated conduct to be irrelevant and let his guard down.’

In any event, there is no empirical basis for the claim that

police will simply keep secret the bases for their arrests. Not

only is there no evidence for this in jurisdictions that already

recognize the closely related offense doctrine, but in many

jurisdictions an arrestee has an affirmative right to be in-

formed of the basis for his arres*.*

> Authority extolling the benefits of providing an arrestee with

charge information (U.S. Br. 20 n.9) no doubt presumes that a// charges

supported by probable cause are to be articulated, rather than only those

that will inevitably be dismissed.

* See, e.g., 725 Ill. Comp. Stat. Ann. 5/103-1(b); Ken. Rev. Stat.

Ann. § 431.025(1); Minn. Stat. 611.01; Or. Rev. Stat. § 133.235(3); S.C.

Code Ann. § 17-13-50; Utah Code Ann. § 77-7-6(1).

20

c. Petitioners’ concerns about curtailing prosecutorial

discretion are also baseless. Petrs. Br. 24-25. Petitioners

insist that “no sound policy is served by precluding the

prosecutor from amending the [unsupported] charge to one

for which probable cause does exist,” and that “a prosecutor

should have authority to amend a charge as additional infor-

mation is discovered.” Petrs. Br. 25. But a prosecutor of

course remains free at all times to amend a charging docu-

ment to include all offenses for which the defendant will be

prosecuted. The closely related offense doctrine applies only

to the charges that may be cited as justifying the initial ar-

rest. It has nothing to do with the prosecutor’s authority to

amend a charging document to prosecute a defendant on the

basis of newly discovered theories or evidence.

ll. THE QUALIFIED IMMUNITY QUESTION

RAISED BY PETITIONERS IS NOT PROPERLY

BEFORF THE COURT

Even though their conduct violated respondent’s Fourth

Amendment right to be free from unreasonable seizure, peti-

tioners contend that they are immune from liability under the

principles of “qualified immunity” this Court’s jurisprudence

has developed to protect officers who, although acting rea-

sonably, inadvertently violate suSpects’ constitutional nights.

Amicus NACDL’s principal interest in this case is the under-

lying probable cause issue, but because qualified immunity

reduces police officers’ incentives to respect defendants’

rights, NACDL has views on that issue as well. See infra

note 5. For the reasons briefly elaborated below, however,

we submit that the qualified immunity question is not prop-

erly presented here and should not be addressed.

To start, it is important to clarify the qualified immunity

issue as it comes to this Court. The applicable standard is

settled: petitioners are immune from liability for their

unlawful arrest of respondent if “a reasonable officer could

have believed [the arrest] to be lawful, in light of clearly es-

tablished law and the information the [arresting] officers

21

possessed.” Anderson v. Creighton, 483 U.S. 635, 641

(1987). A critical component of this inquiry is whether the

officers violated “clearly established law.”

Petitioners and the United States treat the “clearly estab-

lished law” issue as whether the closely related offense doc-

trine was Clearly established at the time of respondent’s ar-

rest. This is incorrect. Petitioners did not assert qualified

immunity in the trial court on the basis of judicial disagree-

ment over the closely related offense doctrine. The jury was

instructed only that “under clearly established law, the con-

duct for which Alford was arrested was not a violation of the

Privacy Act.” Pet. App. 10a, lla. Petitioners do not appear

to have requested — and certainly did not receive — any in- -

struction as to whether the closely related offense doctrine

was Clearly established law. Nor did petitioners raise this

defense on appeal. The Ninth Circuit raised the doctrine it-

self just before oral argument, Pet. App. 24a, but the court

addressed the doctrine only in relation to the question of

whether petitioners’ conduct violated the Fourth Amend-

ment, not the separate question of whether the doctrine was

established with sufficient clarity to afford petitioners a

qualified immunity defense. The majority and dissenting

opinions debated whether respondent’s arrest violated clearly

established law under the Privacy Act, see Pet. App. lla

(maj. op.), 20a (dissent), but neither opinion considered

whether the closely related offense doctrine was clearly es-

tablished law when respondent was arrested. That question

therefore is not properly before this Court.

The proper question — as all three judges on the panel be-

low recognized — is whether it was clearly established at the

time of the arrest that respondent’s conduct did not violate

the Privacy Act. But that question, too, is not adequately

presented here. The jury was instructed that respondent’s

arrest was Clearly unlawful under the Privacy Act, and peti-

tioners did noi challenge that instruction on appeal or in this

Court.

22

In short, apart from the underlying question whether peti-

tioners’ conduct violated the Fourth Amendment at all, this

case does not adequately present any qualified immunity is-

sue. If petitioners cannot now justify the arrest on the basis

of an offense related to the alleged Privacy Act violation — if

the arrest was unlawful under the Fourth Amendment, in

other words — they have effectively waived any claim to im-

munity on the ground that a reasonable officer might have

thought the arrest could be justified post hoc on the basis of

an uncharged, unrelated offense. Accordingly, if the Court

affirms the decision below to the extent it followed the

closely related offense doctrine in analyzing the legality of

respondent’s arrest, the Court should decline to address the

additional qualified immunity questions petitioners raise.°

* It is not clear the approach taken by petitioners and the United

States makes analytical sense in any event. A right is clearly established

for purposes of qualified immunity if officers may “reasonably anticipate

when their conduct may give rise to liability for damages.” Anderson,

483 U.S. at 639 (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984));

see also Wilson v. Layne, 526 U.S. 603, 617 (1999) (whether “reasonable

officer could [] have believed that his actions were lawful”). Petitioners’

“conduct” in this case was the arrest of respondent for violation of the

Privacy Act. That arrest, when it occurred, was unreasonable because it

was Clearly established that the Act did not criminalize respondent’s con-

duct under the circumstances. -It makes little sense to ask whether a rea-

sonable officer who makes an arrest on a patently unreasonable basis

would have done so because he (a) expected that the trial court would

follow the closely related offense doctrine, and (b) assumed that the

prosecutor would be able to come up with some adequate post hoc ra-

tionalization for the arrest. In other words, an officer who makes an ar-

rest on a patently unreasonable basis may reasonably anticipate that the

arrest will give rise to liability for damages, and thus there is no unfair-

ness in denying the officer immunity. The officer who reasonably be-

lieves there is a valid basis for the arrest can easily assure himself of im-

munity simply by charging that offense, which is consistent with sound

law enforcement and Fourth Amendment policies in any event. Accord-

ingly, it is unsurprising that no court that has applied the closely related

doctrine in the context of a § 1983 lawsuit has considered the question

23

CONCLUSION

For the foregoing reasons, the judgment should be af-

firmed.

Respectfully submitted,

PAMELA HARRIS JONATHAN D. HACKER

NAT’L ASS’N OF CRIMINAL (Counsel of Record)

DEFENSE LAWYERS SHANNON M. PAZUR

Co-Chair, Amicus Committee O’MELVENY & MYERS LLP

1625 Eye Street, N.W. 1625 Eye Street, N.W.

Washington, D.C. 20006 Washington, D.C. 20006

(202) 383-5300

Attorneys for Amicus Curiae

August 23, 2004

whether the doctrine — as opposed to the actual basis for the arrest — was

clearly established law at the time of the arrest.