Slip Opinion — Devenpeck v. Alford

(Shp Opimon) OCTOBER TERM, 2004 1

Syllabus

DEVENPECK ETAL. v. ALFORD

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 03-710. Argued November 8, 2004—Decided December 13, 2004

Believing that respondent was impersonating a police officer, petitioner

Haner, a Washington State Patrol officer, pursued and pulled over

respondent's vehicle. While questioning respondent at the scene, pe-

titioner Devenpeck, Haner’s supervisor, discovered that respondent

was taping their conversation and arrested him for violating the

State’s Privacy Act. The state trial court subsequently dismissed the

charge. Respondent then filed this suit in federal court, claiming,

among other things, that his arrest violated the Fourth and Four-

teenth Amendments. The District Court denied petitioners qualified

immunity, and the case went to trial. The jury was instructed, inter

alia, that respondent had to establish lack of probable cause to ar-

rest, and that taping police at a traffic stop was not a crime in Wash-

ington. The jury found for petitioners. The Ninth Circuit reversed,

based in part on its conclusion that petitioners could not have had

probable cause to arrest. It rejected petitioners’ claim that there was

probable cause to arrest for impersonating and for obstructing a law

enforcement officer, because those offenses were not “closely related”

to the offense invoked by Devenpeck at the time of arrest.

Held:

1.A warrantless arrest by a law officer is reasonable under the

Fourth Amendment if, given the facts known to the officer, there is

probable cause to believe that a crime has been or is being commit-

ted. The Ninth Circuit's additional limitation—that the offense es-

tablishing probable cause must be “closely related” to, and based on

the same conduct as, the offense the arresting officer identifies at the

time of arrest—is inconsistent with this Court’s precedent, which

holds that an arresting officer's state of mind (except for facts that he

knows) is irrelevant to probable cause, see Whren v. United States,

2 DEVENPECK v. ALFORD

Syllabus

517 U.S. 806, 812-815. The “closely related offense” rule is also con-

demned by its perverse consequences: it will not eliminate sham ar-

rests but will cause officers to cease providing reasons for arrest, or to

cite every class of offense for which probable cause could conceivably

exist. Pp. 5-9.

2. This Court will not decide in the first instance whether petition-

ers lacked probable cause to arrest respondent for either obstructing

or impersonating an officer because the Ninth Circuit, having found

those offenses legally irrelevant, did not decide that question. Pp. 9-

10.

333 F. 3d 972, reversed and remanded.

ScALIA, J., delivered the opinion of the Court, in which all other

Members joined, except REHNQUIST, C. J., who took no part in the deci-

sion of the case.

Cite as: 543 U.S. __ (2004) 1

Opinion of the Court

NOTICE: This opinion is subject to forma) revision before publication in the

preliminary print of the United States . Readers are requested to

ify the of Decisions, Supreme of the United States, Wash-

ington, D. C. 20543, of any t or other formal errors, in order

that corrections may be made the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 03-710

GERALD DEVENPECK, ET AL., PETITIONERS v.

JEROME ANTHONY ALFORD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[December 13, 2004]

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether an arrest is

lawful under the Fourth Amendment when the criminal

offense for which there is probable cause to arrest is not

“closely related” to the offense stated by the arresting

officer at the time of arrest.

I

A

On the night of November 22, 1997, a disabled automo-

bile and its passengers were stranded on the shoulder of

State Route 16, a divided highway, in Pierce County,

Washington. Alford v. Haner, 333 F. 3d 972, 974 (CA9

2003); App. 94, 98. Respondent Jerome Alford pulled his

car off the road behind the disabled vehicle, activating his

“wig-wag” headlights (which flash the left and right lights

alternately). As he pulled off the road, Officer Joi Haner

of the Washington State Patrol, one of the two petitioners

here, passed the disabled car from the opposite direction.

333 F. 3d, at 974. He turned around to check on the mo-

torists at the first opportunity, and when he arrived,

respondent, who had begun helping the motorists change

2 DEVENPECK v. ALFORD

Opinion of the Court

a flat tire, hurried back to his car and drove away. Ibid.

The stranded motorists asked Haner if respondent was a

“cop”; they said that respondent’s statements, and his

flashing, wig-wag headlights, had given them that impres-

sion. Ibid.; App. 96. They also informed Haner that as

respondent hurried off he left his flashlight behind. Jd., at

97.

On the basis of this information, Haner radioed his

supervisor, Sergeant Gerald Devenpeck, the other peti-

tioner here, that he was concerned respondent was an

“impersonator” or “wannabe cop.” Id., at 97-98. He pur-

sued respondent’s vehicle and pulled it over. 333 F. 3d, at

975. Through the passenger-side window, Haner observed

that respondent was listening to the Kitsap County Sher-

iffs Office police frequency on a special radio, and that

handcuffs and a hand-held police scanner were in the car.

Ibid. These facts bolstered Haner’s suspicion that respon-

dent was impersonating a police officer. App. 106, 107.

Haner thought, moreover, that respondent seemed un-

truthful and evasive: He told Haner that he had worked

previously for the “State Patrol,” but under further ques-

tioning, claimed instead to have worked in law enforce-

ment in Texas and at a shipyard. Jbid. He claimed that —

his flashing headlights were part of a recently installed

car-alarm system, and acted as though he was unable to

trigger the system; but during these feigned efforts Haner

noticed that respondent avoided pushing a button near his

knee, which Haner suspected (correctly) to be the switch

for the lights. 333 F. 3d, at 975; App. 108.

Sergeant Devenpeck arrived on the scene a short time

later. After Haner informed Devenpeck of the basis for his

belief that respondent had been impersonating a police

officer, id., at 110, Devenpeck approached respondent's

vehicle and inquired about the wig-wag headlights, 333

F. 3d, at 975. As before, respondent said that the head-

lights were part of his alarm system and that he did not

Cite as: 543 U.S. __ (2004) 3

Opinion of the Court

know how to activate them. App. 52, 138-139. Like

Haner, Devenpeck was skeptical of respondent’s answers.

In the course of his questioning, Devenpeck noticed a tape

recorder on the passenger seat of respondent’s car, with

the play and record buttons depressed. 333 F. 3d, at 975.

He ordered Haner to remove respondent from the car,

played the recorded tape, and found that respondent had

been recording his conversations with the officers. Deven-

peck informed respondent that he was under arrest for a

violation of the Washington Privacy Act, Wash. Rev. Code

§9.73.029 (1994). 333 F. 3d, at 975; App. 144-145. Re-

spondent protested that a state court-of-appeals decision,

a copy of which he claimed was in his glove compartment,

permitted him to record roadside conversations with police

officers. 333 F. 3d, at 975; App. 42, 67-68. ~~ -—

returned to his car, reviewed the language of the Privacy

Act, and attempted unsuccessfully to reach a prosecutor to

confirm that the arrest was lawful. Jd., at 151-154.

Believing that the text of the Privacy Act confirmed that

respondent's recording was unlawful,' he directed Officer

Haner to take respondent to jail. Id., at 154.

A short time later, Devenpeck reached by phone Mark

Lindquist, a deputy county prosecutor, to whom he re-

counted the events leading to respondent’s arrest. 333

F. 3d, at 975. The two discussed a series of possible crimi-

nal offenses, including violation of the Privacy Act, imper-

sonating a police officer, and making a false representa-

' The relevant provision of the Washington Privacy Act states:

“Except as otherwise provided in this chapter, it shall be unlawful for

any individual, partnership, corporation, association, or the state of

Washington, its agencies, and political subdivisions to intercept, or

record any .. . [pjrivate conversation, by any device electronic or

otherwise designed to record or transmit such conversation regardless

how the device is powered or actuated without first obtaining the

consent of all the persons engaged in the conversation.” Wash. Rev.

Code §9.73.030(1)(b) (1994).

4 DEVENPECK v. ALFORD

Opinion of the Court

tion to an officer. App. 177-178. Lindquist advised

there was “clearly probable cause,” id., portman bg

gested that meme rege se tae on Be ob “obstructing a

public servant” “based on the runaround fhe] gave [De-

venpeck],” id., at 157. Devenpeck rejected this suggestion,

explaining that the State Patrol does not, as a matter of

policy, “stack charges” against an arrestee. Id., at 157-

158.

At booking, Haner charged respondent with violating

the State Privacy Act, id., at 32-33, and issued a ticket to

respondent for his flashing headlights under Wash. Rev.

Code §46.37.280(3) (1994), App. 24-25. Under state law,

respondent could be detained on the latter offense only for

the period of time “reasonably necessary” to issue a cita-

tion. §46.64.015 (1994). The state trial court subse-

quently dismissed both charges. App. 10, 29.

Respondent filed suit against petitioners in Federal

District Court. He asserted a federal cause of action under

Rev. Stat. §1979, 42 U.S. C. §1983, and a state cause of

action for unlawful arrest and imprisonment, both claims

resting upon the allegation that petitioners arrested him

without probable cause in violation of the Fourth and

Fourteenth Amendments. 333 F. 3d, at 975. The District

Court denied petitioners’ motion for summary judgment

on grounds of qualified immunity, and the case proceeded

to trial. Alford v. Washington State Police, Case No. C99—

5586RJB (WD Wash., Nov. 30, 2000), App. to Pet. for Cert.

40a. The jury was instructed that, for respondent to pre-

vail on either his federal- or state-law claim, he must

demonstrate that petitioners arrested him without prob-

able cause, App. 199-201; and that probable cause exists

“if the facts and circumstances within the arresting offi-

cer's knowledge are sufficient to warrant a prudent person

to conclude that the suspect has committed, is committing,

or was about to commit a crime,” id., at 201. The jury was

Cite as: 543 U.S. __ (2004) 5

Opinion of the Court

also instructed that, at the time of respondent’s arrest, a

State Court-of-Appeals decision, State v. Flora, 68 Wash.

App. 802, 845 P. 2d 1355 (1992), had clearly established

that respondent’s taping of petitioners was not a crime,

App. 202. And the jury was directed that it must find for

petitioners if a reasonable officer in the same circum-

stances would have believed respondent's detention was

lawful. Id., at 200. Respondent did not object to any of

these instructions. The jury returned a unanimous verdict

in favor of petitioners. 333 F. 3d, at 975. The District

Court denied respondent’s motion for judgment as a mat-

ter of law or, in the alternative, a new trial, and respon-

dent appealed. Ibid.; App. to Pet. for Cert. 25a.

A divided panel of the Court of Appeals for the Ninth

Circuit reversed, finding “no evidence to support the jury’s

verdict,” 333 F. 3d, at 975. The majority concluded that

petitioners could not have had probable cause to arrest

because they cited only the Privacy Act charge and “[t]ape

recording officers conducting a traffic stop is not a crime in

Washington.” Id., at 976. The majority rejected petition-

cer, Wash. Rev. Code §9A.60.040(3) (1994), and cautvet-

ing a law-enforcement officer, §9A.76.020, because, it said,

6 DEVENPECK v. ALFORD

Opinion of the Court

II

The Fourth Amendment protects “[t}he right of the

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

effects, against unreasonable searches and seizures.” In

conformity with the rule at common law, a warrantless

arrest by a law officer is reasonable under the Fourth

Amendment where there is probable cause to believe that

a criminal offense has been or is being committed. See

United States v. Watson, 423 U.S. 411, 417-424 (1976);

Brinegar v. United States, 338 U.S. 160, 175-176 (1949).

Whether probable cause exists depends upon the reason-

able conclusion to be drawn from the facts known to the

arresting officer at the time of the arrest. Maryland v.

Pringle, 540 U. S. 366, 371 (2003). In this case, the Court

of Appeals held that the probable-cause inquiry is further

confined to the known facts bearing upon the offense

actually invoked at the time of arrest, and that (in addi-

tion) the offense supported by these known facts must be

“closely related” to the offense that the officer invoked.

333 F. 3d, at 976. We find no basis in precedent or reason

for this limitation.

Our cases make clear that an arresting officer’s state of

mind (except for the facts that he knows) is irrelevant to

the existence of probable cause. See Whren v. United

States, 517 U.S. 806, 812-813 (1996) (reviewing cases);

Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam).

That is to say, his subjective reason for making the arrest

need not be the criminal! offense as to which the known

facts provide probable cause. As we have repeatedly

explained, “‘the fact that the officer does not have the

state of mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action does

not invalidate the action taken as long as the circum-

stances, viewed objectively, justify that action.” Whren,

supra, at 813 (quoting Scott v. United States, 436 U.S.

128, 138 (1978)). “[T]he Fourth Amendment's concern with

Cite as: 543 U.S. __ (2004) 7

Opinion of the Court

‘reasonableness’ allows certain actions to be taken in

certain circumstances, whatever the subjective intent.”

Whren, supra, at 814. “[E}venhanded law enforcement is

best achieved by the application of objective standards of

conduct, rather than standards that depend upon the

subjective state of mind of the officer.” Horton v. Califor-

nia, 496 U. S. 128, 138 (1990).

The rule that the offense establishing probable cause

must be “closely related” to, and based on the same con-

duct as, the offense identified by the arresting officer at

the time of arrest is inconsistent with this precedent.’

Such a rule makes the lawfulness of an arrest turn upon

the motivation of the arresting officer—eliminating, as

validating probable cause, facts that played no part in the

officer’s expressed subjective reason for making the arrest,

and offenses that are not “closely related” to that subjec-

tive reason. See, e.g., Sheehy v. Plymouth, 191 F. 3d 15, 20

(CAl 1999); Trejo v. Perez, 693 F. 2d 482, 485-486 (CA5

1982). This means that the constitutionality of an arrest

under a given set of known facts will “vary from place to

place and from time to time,” Whren, supra, at 815, de-

pending on whether the arresting officer states the reason

for the detention and, if so, whether he correctly identifies

a general class of offense for which probable cause exists.

An arrest made by a knowledgeable, veteran officer would

be valid, whereas an arrest made by a rookie in precisely

the same circumstances would not. We see no reason to

2 At least one Court of Appeals has adopted a variation of the “closely

related offense” rule which looks not to the offense stated by the officer

at the time of arrest, but to the offense given by the officer at booking.

See Gassner v. Garland, 864 F. 2d 394, 398 (CA5 1989); but see Sheehy

v. Plymouth, 191 F. 3d 15, 20 (CA1 1999) (holding that an arrest cannot

be justified by an offense given at booking when the offense asserted by

the officer at the time of arrest was not closely related). Most of our

discussion in this opinion, and our conclusion of invaldity, apphes to

this variation as well.

8 DEVENPECK v. ALFORD

Opinion of the Court

ascribe to the Fourth Amendment such arbitrarily vari-

able protection.

Those who support the “closely related offense” rule say

that, although it is aimed at rooting out the subjective vice

of arrests made for the wrong reason, it does so by objec-

tive means—that is, by reference to the arresting officer's

_statement of his reason. The same argument was made in

Whren, supra, in defense of the proposed rule that a traffic

stop can be declared invalid for malicious motivation when

it is justified only by an offense which standard police

practice does not make the basis for a stop. That rule, it

was said, “attempt[s] to root out subjective vices through

objective means,” id., at 814. We rejected the argument

there, and we reject it again here. Subjective intent of the

arresting officer, however it is determined (and of course

subjective intent is always determined by objective

means), is simply no basis for invalidating an arrest.

Those are lawfully arrested whom the facts known to the

arresting officers give probable cause to arrest.

Finally, the “closely related offense” rule is condemned

by its perverse consequences. While it is assuredly good

police practice to inform a person of the reason for his

arrest at the time he is taken into custody, we have never

held that to be constitutionally required? Hence, the

predictable consequence of a rule limiting the probable-

cause inquiry to offenses closely related to (and supported

by the same facts as) those identified by the arresting

officer is not, as respondent contends, that officers will

cease making sham arrests on the hope that such arrests

will later be validated, but rather that officers will cease

‘Even absent a requirement that an individual be informed of the

reason for arrest when he is taken into custody, he will not be left to

wonder for long. “{Pjersons arrested without a warrant must promptly

be brought before a neutral magistrate for a judicial determination of

probable cause.” County of Riverside v. McLaughlin, 500 U.S. 44, 53

(1991).

Cite as: 543 U.S. ___ (2004) 9

Opinion of the Court

providing reasons for arrest. And even if this option were

to be foreclosed by adoption of a statutory or constitutional

requirement, officers would simply give every reason for

which probable cause could conceivably exist.

The facts of this case exemplify the arbitrary conse-

quences of a “closely related offense” rule. Officer Haner’s

initial stop of respondent was motivated entirely by the

suspicion that he was impersonating a police officer. App.

106. Before pulling respondent over, Haner indicated by

radio that this was his concern; during the stop, Haner

asked respondent whether he was actively employed in

law enforcement and why his car had wig-wag headlights;

and when Sergeant Devenpeck arrived, Haner told him

why he thought respondent was a “wannabe cop,” id., at

98. In addition, in the course of interrogating respondent,

both officers became convinced that he was not answering

their questions truthfully and, with respect to the wig-wag

headlights, that he was affirmatively trying to mislead

them. Only after these suspicions had developed did

Devenpeck discover the taping, place respondent under

arrest, and offer the Privacy Act as the reason. Because of

the “closely related offense” rule, Devenpeck’s actions

render irrelevant both Haner’s developed suspicions that

respondent was impersonating a police officer and the

officers’ shared belief that respondent obstructed their

investigation. If Haner, rather than Devenpeck, had made

the arrest, on the stated basis of his suspicions; if Deven-

peck had not abided the county’s policy against “stacking”

charges; or if either officer had made the arrest without ~

stating the grounds; the outcome under the “closely re-

lated offense” rule might well have been different. We

have consistently rejected a conception of the Fourth

Amendment that would produce such haphazard results,

see Whren, 517 U. S., at 815.

10 DEVENPECK v. ALFORD

Opinion of the Court

* * *

Respondent contended below that petitioners lacked

probable cause to arrest him for obstructing a law-

enforcement officer or for impersonating a_law-

enforcement officer. Because the Court of Appeals held

that those offenses were legally irrelevant, it did not de-

cide the question. We decline to engage in this inquiry for

the first time here. Accordingly, we reverse the judgment

of the Ninth Circuit and remand the case for further pro-

ceedings consistent with this opinion.

It is so ordered.

THE CHIEF JUSTICE took no part in the decision of this

case.