DEVENPECK v. ALFORD
Tony Alford was driving when Washington state police, concerned Alford was impersonating a police officer, pulled him over. During a search of Alford's car, police found a tape recorder recording the traffic stop. The police arrested Alford and said he had made an illegal recording of a private conversation - a violation, they said, of the state's Privacy Act. A state court judge dismissed charges against Alford, ruling - as another state court already had - that the Privacy Act did not apply to public police work.
Alford then sued the officers in federal district court, alleging his arrest violated the Fourth Amendment right to be free from unreasonable seizure. The district court ruled for the officers.
The Ninth Circuit Court of Appeals reversed and ruled the officers violated Alford's Fourth Amendment rights. The facts and law were so clearly established that no reasonable officer could believe Alford violated the Privacy Act. Therefore the officers lacked probable cause for the arrest and were not protected by qualified immunity. The court rejected the officers' argument that the arrest was constitutional because there was probable cause Alford committed the crime of impersonating a police officer. That was not the reason police gave during the arrest. The Ninth Circuit said there was only one instance when an arrest for a reason the police did not articulate was constitutional: if that reason was closely related to the stated reason for the arrest. Impersonating a police officer was not closely related to violating the state Privacy Act. Other circuit courts disagreed with the Ninth Circuit's "closely related offense doctrine."
(1) Does an arrest violate the Fourth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not closely related to the offense articulated by the officer at the time of the arrest? (2) For the purposes of qualified immunity, was "closely related offense doctrine" clearly established given that different circuit courts disagreed on its application?
Legal provision: Amendment 4: Fourth Amendment
No. In a unanimous opinion delivered by Justice Antonin Scalia, the Court held that police had probable cause to arrest Alford for impersonating a police officer, despite the fact that this was not closely related to the offense police identified during the arrest. A warrantless arrest by a police officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe a crime has been or is being committed. The offense establishing probable cause need not be closely related to the offense the arresting officer identifies at the time of arrest. An arresting officer's state of mind, except for facts he knows, is irrelevant to probable cause.
Argument of Maureen A. Hart
Justice Stevens: We'll hear argument in No. 03-710, Devenpeck against Alford.
Mr. Hart: Justice Stevens, and may it please the Court:
The Ninth Circuit invalidated Mr. Alford's arrest and held the arresting officers in this case personally liable for damages based on the closely related offense doctrine.
The doctrine is contrary to fundamental Fourth Amendment principles that probable cause is an objective inquiry based on all of the facts and circumstances known to the officer at arrest.
In contrast, the closely related offense doctrine is a subject of inquiry that limits probable cause only to those facts and circumstances closely related to the offense that the arresting officer announces at arrest.
Under the doctrine, then if two officers observe precisely the same facts and circumstances and arrest the suspect, the arrest in one case can be valid and in the other invalid based only on the officer's subjective legal evaluation--
Justice O'Connor: Ms. Hart, is there any requirement in Washington or generally that an officer state the grounds for the arrest to the person being arrested at the time?
Mr. Hart: --Justice O'Connor, there's no constitutional requirement and there is no requirement in... in Washington that that be done.
A number of States do require that it be done statutorily and many of those States also--
Justice O'Connor: We're dealing here with a case from the State of Washington, and you assert there is no such requirement in Washington.
Mr. Hart: --There is not.
Justice O'Connor: But in this case when the respondent was arrested, he was informed by the officer that the arrest was for making a tape recording of the conversation?
Mr. Hart: That is correct.
Justice O'Connor: And it turns out... do you concede that that was, in fact, not a lawful grounds for arrest?
Mr. Hart: That... at this point, the question of the--
Justice O'Connor: Do you concede that--
Mr. Hart: --Your Honor--
Justice O'Connor: --that in the State of Washington, that it is perfectly lawful to record the conversation with the police?
Mr. Hart: --This... the facts of this particular case have not been before a... a court in Washington, Your Honor.
Justice O'Connor: But I'm asking you.
What is your view?
Is it lawful or not for an individual to record, tape record, the conversation with a policeman on the occasion of a stop?
Mr. Hart: Your Honor, I believe in this case there would be probable cause for an officer to believe it was and therefore effect an arrest.
I don't believe that the... the question has been answered in Washington, and I believe there are good grounds to argue that it would be permissible and that, indeed, unlike the decision in State v. Flora, there were distinguishing circumstances here, including the absence of passers-by on the scene.
Justice O'Connor: Well, do we decide this case on the understanding that it was lawful to make the recording?
Is that the basis in which we decide this case?
Mr. Hart: No, Your Honor.
We have not raised the Privacy Act as an issue before this Court.
Justice Kennedy: Well, for argument--
Justice O'Connor: Now, Washington also has an anti-stacking policy, does it?
Mr. Hart: The State Patrol does, Your Honor, yes.
Justice O'Connor: Is... is that just a rule of the patrolmen in the State?
Mr. Hart: It--
Justice O'Connor: They won't arrest someone for several charges?
Mr. Hart: --It's an agency policy and troopers with the Washington State Patrol are trained to it.
Justice Souter: Well, is it an agency policy that the State endorses, and if so, why... why do you endorse or adopt the policy?
Mr. Hart: Well, Your Honor, I believe that... that stacking charges really is... there are good reasons to endorse the policy.
One is that it's not a particular--
Justice Scalia: Not... not stacking charges you mean.
Mr. Hart: --I'm sorry.
Not stacking charges, Your Honor, is... is an... a sound policy for a number of reasons.
First, it's not a particularly effective or efficient use of law enforcement resources, but perhaps more importantly, it can have significant negative consequences for people who are subject to arrest in terms of their ability... the amount of bail, their ability to post bail, and to secure a pre-trial release.
Justice Souter: Well, is that... I mean, is that the... the real basis for the policy, that we... that Washington does not want to make it difficult for... for arrestees to raise bail?
Mr. Hart: Your Honor, I can't tell you precisely what the Washington State Patrol's thinking is on it.
My impression is that, in part, they believe that... that the appropriate law enforcement response is... is to determine whether there's probable cause and to arrest and leave the sorting out of the charges to be pressed actually by the State to the prosecuting attorney.
Justice Souter: What do you make of the argument that unless the cause of the arrest is, number one, stated and, number two, a... a cause that a defendant can rely on, that in any case like this in which the stated grounds of the arrest turn out to be... we will assume, turn out to be inadequate, the police will always, particularly in traffic cases, be able to come up with something later on to justify the arrest?
What... what do you make of that argument?
Mr. Hart: Well, I... I think what I would make of it, Justice Souter, is that provided that there's probable cause for arrest, that the fact that there may be a basis to... to stop a number of... of motorists is not... is not relevant.
And in part, I believe that, for example, this Court's decision in Whren indicates that so long as there is probable cause for arrest, the reason for the--
Justice Souter: But that was for an... an arrest in which, so far as we can tell, the... the stated grounds for the arrest were those for which there was probable cause.
And I think one of the concerns underlying the argument that I asked you to comment on is that if the... if the police, in effect, have... have discretion ad lib afterwards to come up with new grounds for the arrest, there's... there's going to be a kind of a basic corrosion in the integrity of the arrest process and in the confidence of people to believe that the police are really acting in good faith when they make an arrest.
Mr. Hart: --Well, Your Honor, the... if there is probable cause for arrest, that is the concern of the Fourth Amendment, and I... I don't believe that the... the concern... I don't know that there's any empirical evidence that the concern that you are expressing has been borne out.
Justice Souter: That... that may be... that may be the... the best response.
And I take it, so far as you know, there... there are no studies that have gone into this on an empirical basis.
Is that correct, so far as you know?
Mr. Hart: Not as... as far as I know, Your Honor.
But I would also suggest to you that the notion that an officer would effect an arrest without any basis for the arrest on a hope that a prosecuting attorney can come up with a basis for the arrest--
Justice Souter: No.
The... the argument is that he thinks he does have a ground.
It turns out that he's wrong.
Unless he is very unimaginative, he'll find another one.
It's not that he arrests saying I have no basis to arrest this person, but I'll think of something later.
It's... it's the... the problem is, I think... or the argument, I think, is directed to a case like this.
Mr. Hart: --Well, and... and Your Honor, I... I do believe that the concern of the Fourth Amendment, which is the only constitutional provision at issue in this case, is that there in fact be a reasonable basis for arrest and that subsequently or promptly subsequently or prior to arrest be tested by a neutral magistrate.
And that's the only concern.
Justice Scalia: Ms. Hart, I'm... I'm not sure what you mean by... that there has to be probable cause for arrest.
Do you mean objectively, or do you mean on the basis of the facts known to the arresting officer?
I mean, let's... let's assume an officer stops a car for a broken taillight, and it turns out the car doesn't have a broken taillight.
So that basis is wrong.
However, the car also has an expired inspection sticker, which the officer didn't know about.
Was there a probable cause for arrest, as you're using the term here?
Mr. Hart: If there was probable cause based on the... if there was reason based on the objective facts and circumstances--
Justice Scalia: And it doesn't matter whether he knew those facts and circumstances.
Mr. Hart: --that... known to the officer at arrest.
Justice Scalia: Oh, so it has to be known.
Mr. Hart: Yes.
Justice Scalia: So in my example, the arrest would be invalid because at the time of the arrest, he didn't know about the sticker.
Mr. Hart: Absent the circumstances at arrest giving rise to a reasonable basis to believe that a crime had been committed, there would not be probable cause.
Justice Scalia: So you're saying it's the facts known to the officer--
Mr. Hart: Precisely.
Justice Scalia: --that have to establish the probable--
Justice Ginsburg: That's--
Justice Scalia: --Once... once you establish that limitation, are you willing to accept the horrible that... that Justice Souter proposed to you?
Is it... is it, indeed, so easy to... to gin up some other cause for arrest when you used a mistaken cause?
I don't know that it's all that easy.
Mr. Hart: It is not and... and... it is not.
And that was the... the reason why I indicated in response to Justice Souter's question that I do believe that it is not all that easy.
And I... I believe that one of the foremost commentators in this area has termed that notion fanciful for the reason that it is... it is stopping on a hope and a prayer that something will provide justification for that later--
Justice Ginsburg: --That was LaFave.
You cited LaFave in your brief for that proposition.
Mr. Hart: --Yes.
Justice Ginsburg: You... you made the point, in answer to Justice O'Connor, that a police officer in Washington is not required to divulge on the spot the reason for the arrest.
What is the point at which the arrestee under Washington law is entitled to know the cause of the arrest?
Mr. Hart: At charging, Your Honor, there... there... the... the individual who has been arrested, as a matter of the Sixth Amendment, would be entitled to know the charges against him or her, and the officer is required, in a warrantless arrest, to appear before a neutral magistrate and have the probable cause for the arrest tested--
Justice Ginsburg: Is it... is it at the arraignment or the... at the earlier booking in the police station?
Mr. Hart: --I'm sorry.
I'm not following your question.
Justice Ginsburg: Is it... is it... is the time when the arrestee must told you are being arrested for X reason, is that when the arrestee appears before the magistrate or is it earlier when he's brought into the police station and he's booked?
The arrest is booked.
At which point?
Mr. Hart: Neither, Justice Ginsburg.
The arrestee would be entitled constitutionally to know the charge against him or her when criminal... a criminal prosecution is commenced by charging.
For the most part, that is done in Washington by an information or a charge filed by a prosecuting attorney.
Justice Stevens: You mean he could be held until a charge is filed without being told why he's being held?
Mr. Hart: Justice Stevens--
Justice Stevens: So that could be a week or 2.
Mr. Hart: --But it would be... he would be held in that case following a determination by a neutral magistrate that there are grounds to hold him.
And at that point--
Justice Scalia: Would the magistrate keep those grounds secret?
Mr. Hart: --They would not be secret, Your Honor, no.
Justice Scalia: Well, wouldn't the magistrate tell him why he's being held?
Mr. Hart: The magistrate would tell the... the arrestee why he's being held, provided the arrestee is present for that particular procedure.
Justice Stevens: And how soon is he entitled to appear before the magistrate?
Mr. Hart: I'm sorry?
Justice Stevens: How soon after his physical arrest does he have a right to appear before the magistrate?
Mr. Hart: My... my recollection under Washington's law would be... 72 hours is the time for the charge.
Justice Stevens: So for 72 hours, he could be held incommunicado without knowing why he was arrested.
Mr. Hart: But... but for that period, the arresting officer would have had to... during the 48-hour period at the outset, that this Court discussed in Riverside, the probable cause for the arrest would be tested by a neutral magistrate.
Justice Ginsburg: You also said that you thought this case is distinguishable on the legitimacy of taping the conversation with the police officer on the highway.
Why... why do you think this is distinguishable from the Washington Intermediate Appellate Court decision that the... that the... that Alford wanted to show to the police officer?
Mr. Hart: Well, first of all, again, Justice Ginsburg, the Privacy Act issue is not one that we have raised before this Court.
But... but the reason that I would suggest it is distinguishable is that in a subsequent case considered by the Washington State Supreme Court called State v. Clark, the court look at Flora, the Intermediate Appellate Court case, and... and termed it as a case that said you do not have a private conversation when it is open to passers-by.
And in Flora, there was another individual present at the scene and who was, in fact, subsequently arrested for interfering with the arrest in the Flora case.
So there is, all I'm suggesting, at least some grounds for distinguishing the Flora case for that reason.
Justice Ginsburg: Do you know if there's been any instruction in the State of Washington to police following that Flora decision about taping... about arresting people for taping conversations with police officers?
Mr. Hart: I do believe there has, Your Honor.
It's not a matter of record, however, in the... against arresting for that reason.
Justice Ginsburg: The flashing headlights which was... there was a citation.
There was an arrest for the tape recording and a citation for the flashing headlights.
Could there have been a... an arrest for the flashing headlights, or is that a lesser category of offense that's not an arrestable offense?
Mr. Hart: Under Washington law, the flashing headlights, the wig-wag lights, in and of themselves would not be an arrestable offense.
It would be a citable offense.
The impersonating offense involved in this case would be arrestable, and the wig-wag headlights would play a part in that, however.
Justice Ginsburg: But he was never... never charged with the impersonating an officer, only with the flashing headlights.
Is that right?
Mr. Hart: That's correct.
Justice Breyer: The... the case, as far as I'm thinking of it at the moment, comes down to everybody is agreeing... well, no.
It's... you go ahead because you want to reserve that probably.
Mr. Hart: Thank you, Your Honor.
Justice Stevens: Mr. Comey.
Argument of James B. Comey
Mr. Comey: Justice Stevens, and may it please the Court:
The validity of a police action under the Fourth Amendment turns upon an objective assessment of the facts viewed through the prism--
Justice Souter: Do the facts, on your view, have to be known to the officer?
Mr. Comey: --Yes, Your Honor.
Justice Souter: Is... is there... and correct me if I'm wrong.
In... in cases in which we're inquiring into probable cause for a warrantless search, we give the government credit for any fact known to any officer, don't we?
Mr. Comey: Yes, Your Honor.
Justice Souter: Why wouldn't we have the same rule?
Why shouldn't we have the same rule with respect to facts known to any officer when one officer makes an arrest?
Mr. Comey: I suspect, Your Honor, that the Government would urge such a rule if it were at issue in this case.
Justice Souter: But it's not urging it here.
Mr. Comey: Well, I don't see it at... at issue in this case, Your Honor.
Justice Souter: I don't think it is.
I just want to know where we're going.
Mr. Comey: That's... that's correct, Your Honor.
The... the Government's position, as with the State of Washington's position, is that the... the analysis is simply did the facts known to the officer, viewed through the prism of an objectively reasonable officer, establish probable cause.
And that to make an evaluation of the arrest turn upon the officer's subjective assessment of those facts... in other words, the working of his brain, the crunching of those facts that results in the spitting out of a legal conclusion... is contrary to this Court's precedent and guts the objective reasonable test, and would make, instead, the validity of a Fourth Amendment action turn upon whether the officer is particularly smart, whether he's new, whether he's nervous, whether he says nothing at all or whether he decides to say, you're under arrest for everything listed in the Washington code book.
Under those circumstances, the results would be different.
The... the concern that Your Honor raised about police officers engaging in a post hoc rationalization I respectfully suggest is not a concern that is rooted in reality because the facts continue to drive the analysis.
Whether or not a police officer is right at the arrest scene in invoking a particular statute, if that turns out to be incorrect, it is still the facts that were known to him that must support probable cause for some other offense.
Justice Souter: So far as you know, there... there are no empirical studies looking into this particular horrible?
Mr. Comey: No, I'm not aware of any, Your Honor.
I also suggest that if this were the concern that the Ninth Circuit were looking to address by the closely related offense doctrine, the remedy sweeps far too broadly in both directions.
It punishes officers who at the scene engage in remarkable good faith conduct.
I mean, these two police officers I think are what the public would hope these police officers were, looking at a code book at the roadside, calling a prosecutor late at night, trying to get it right.
They are punished under this doctrine.
Those that are rewarded are those who are smart enough, perhaps a veteran, perhaps someone who has read the Ninth Circuit's cases, to stay completely silent, to say nothing at all, knowing that he's going to be fine.
He needs to engage in no--
Justice O'Connor: Mr. Comey, I think you rely, in part at least, on this Court's case in Whren--
Mr. Comey: --Yes, Your Honor.
Justice O'Connor: --for the result for which you argue.
But in Whren, the stated reason for the stop, traffic enforcement, was lawful, and we didn't have to look any further.
In this case, the stated reason I think we assume, at least according to the trial judge's instruction to the jury, was unlawful.
Does that impair the reliance on Whren?
Mr. Comey: I don't believe it does, Your Honor.
I believe that what Whren teaches is that the subjective working of the police officer's mind, his motives, his intentions, his legal assessments, as in other cases, his legal assessment with respect to the extent of a consent to search, or the reason he's boarding a boat, is irrelevant, that that's for courts to do.
What matters is what came into an officer's brain, not what came out as a result of his working on it.
Because, as I said, that would make law enforcement far from evenhanded.
It would make it depend upon who the officer was at the roadside on any given night.
And those similarly situated would be treated very, very differently, depending upon what an officer chose to say.
And as I said, silence in a... in a jurisdiction that's governed by the closely related offense doctrine is the best course.
Justice Souter: But if... if we had gone the other way in Whren, we would still have the problem that we have in this case, wouldn't we?
Regardless of... of how an arrest would be justified, the issue here is are the grounds of justification limited to the reason and in most cases the stated reason for the arrest.
So we'd have this problem even if Whren had... had come out otherwise, wouldn't we?
Mr. Comey: I think we would still be discussing whether the subjective functioning of an officer's mind is relevant for Fourth Amendment purposes, which turns upon whether the action was reasonable in the case of an arrest--
Justice Souter: But the question here is the scope of the Fourth Amendment inquiry.
Can it take in probable cause for reasons other than the reason for the arrest or the stated reason for the arrest?
Can it consider other offenses, and we'd have that regardless of... of Whren, wouldn't we?
Mr. Comey: --I think we would, Your Honor, to the extent that Whren is about motives and this case is about something very closely related, still the inner working of an officer's mind, what legal conclusion he draws from facts.
Justice Ginsburg: Why is it subjective?
I mean, in... in Whren, the question was finding a hidden motive as distinguished from the motive that was written out.
Here, there's nothing subjective about what the officer charged this person with on the spot.
He told him.
There wasn't anything hidden in his mind.
He said, I'm arresting you for X reason, for tape recording.
And then they had a whole colloquy.
So what the... what the arrest was for is as objective as it can be.
Mr. Comey: I would suggest, Your Honor, that his speaking, his invocation of a particular code section is an objective manifestation of an essentially subjective process.
And that's illustrated by imagining three stops on that road that night, three Mr. Alfords, exact same facts.
In one, the officer is engaged in the process that he engaged in here.
In the other two, the officer chooses in the first to say nothing, and in the third, to say... hold up the code book and say what you did is in here.
Everything in here applies to you, wise guy.
Now get in the car.
In those two other circumstances, complete silence and the table of contents approach, we wouldn't be here.
These officers would not have been in litigation for 4 years.
That to me demonstrates that it is essentially subjective because it is driven not by the facts, what the defendant did, but by the nature of the police officer.
Is he clever?
Has he gone to law school at night?
Justice Stevens: But, of course, even in those examples, there could be a difference in what the police officer had actually observed.
He might not have seen the safety sticker or the taillight or whatever it is.
So you do have some inquiry into the mental processes of the officer in every case.
Mr. Comey: Yes, Your Honor.
And... and if... perhaps my distinction is... is too homely, but I would say that's about what comes into his mind, into the brain, his senses.
Did he see this taillight?
Did he see the sticker?
Not what comes out of his mouth as a result of the functioning of that brain, his legal brain.
The legal work is for the courts looking at an arrest that's been challenged through the prism of an objectively reasonable officer.
It does not depend, else Fourth Amendment seizures would be not reasonable, but would vary depending upon the skills of an individual officer from roadside to roadside.
And that is utterly inconsistent with this Court's precedent and would, in fact, gut the objective reasonableness test.
The Ninth Circuit's rule would lead to dramatically uneven law enforcement.
It would, indeed, lead to either stacking or silence, and there's plenty of good reason why an officer or a Federal agent, who are not required to say anything at arrest, might want to inform a defendant of a basis for his arrest and might want to uphold other bases for an arrest, to protect a witness, for example.
To drive police officers to the extremes is not in the public interest.
Justice Ginsburg: You... you predicted that this would be in practice very bad.
There are some jurisdictions that have the closely related test, are there not?
Mr. Comey: Yes, Your Honor.
The Ninth Circuit.
Justice Ginsburg: But the... outside the Ninth Circuit.
Mr. Comey: Yes, Your Honor.
I believe the Seventh Circuit as well and the First Circuit.
Justice Ginsburg: Do we know whether these horribles have occurred there, that the police are booking for everything?
Mr. Comey: I do not, Your Honor.
I... I know with Federal agents, Federal agents say nothing.
They're required to say nothing.
They simply bring a defendant in on a warrantless arrest, cuff him, leave him in the cellblock, and then the assistant U.S. attorneys take the matter before a magistrate.
So there is... and that's one of the things that demonstrates the unworkability of this test because there are plenty of jurisdictions, thousands of Federal agents, who are under no obligation to say anything.
And so it's hard to see how this test, even to the extent there were a concern about the evil or perceived evil of post hoc rationalization, which I suggest there isn't, this... how this test would be applied--
Justice Kennedy: In... in the Federal system, is the arrest based on what the officer knew and... and see... and saw at the time?
Mr. Comey: --Yes, Your Honor.
His perceptions, the... the facts known to the arresting officers.
Justice Kennedy: Suppose he had asked for a gun permit and he sees the gun permit, and he said, well, it's... that's okay.
You've got the permit, but I'm going to arrest you for reckless driving.
Then he finds out the driving charge is no good.
It can't stand.
But then they look at his wallet more carefully and they see the permit is expired.
What... what rule then?
At the police station, they... they see the permit is expired.
In other words, they find out a fact after... after they arrested him.
Mr. Comey: Well, I... I would suspect that any statements made or seizures made pursuant to the arrest, which was made on facts known to the officers, that did not include what was in his wallet would be in jeopardy.
That... you still might be able to prosecute him, but you'd have to work awful hard to save anything you got as a result of that arrest.
Justice Kennedy: So you would confine the rule to what the officer has seen at the time of the arrest.
Mr. Comey: Facts known to the officers, including facts known to officers with whom he or she is working.
Thank you, Your Honor.
Justice Stevens: Thank you, Mr. Comey.
Argument of R. Stuart Phillips
Mr. Comey: Justice Stevens, may it please the Court:
In essence, the closely related offense doctrine enforces the reasonableness clause by precluding officers from arresting someone for non-criminal conduct.
At its core, that's what this is about.
Mr. Alford was arrested for conduct that was not--
Justice O'Connor: Well, I thought at its core it was about this rule that the Ninth Circuit adopted about closely related offenses.
I thought at its core that's what we were concerned with.
Mr. Comey: --Well, Your Honor, the closely related offense doctrine itself is... it's in five circuits... six depending on how you count the cases.
But it's designed to... to look at two things: number one, whether the arrest itself is reasonable; and number two, from a qualified immunity standpoint, whether... essentially it's a no harm/no foul rule.
If the conduct for which the person was arrested is criminal, but the officer merely has a mistake in terminology... he calls it driving while license suspended instead of reckless driving... then it actually salvages the arrest for law enforcement.
Justice O'Connor: Well, what if the arresting officer just doesn't give a reason for the arrest, just makes the arrest, and it turns out, at the end of the day, that indeed there were objective facts that would have justified an arrest.
It wasn't what the officer had in mind but he didn't say anything.
What result then?
Mr. Comey: Your Honor, that... that implicates several other rights.
Number one, it is... while an officer could, in some jurisdictions, effectuate a warrantless arrest without stating a basis therefor--
Justice O'Connor: Well, could... could an arrest made under the circumstances I described be valid?
Mr. Comey: --I hate to say this, Your Honor, but it depends because at some point, for example, when the person is brought before the magistrate for the probable cause determination, they're not operating in a vacuum.
There will have to be--
Justice O'Connor: No.
At that time, there does.
But we're talking about at the time of arrest.
And it... it just... if the closely related offense doctrine has the effect of punishing an officer for explaining to the suspect a reason for the arrest, why is that a good doctrine?
I mean, if the officer could say nothing and could end up, at the end of the day, having a valid arrest, I just think the closely related doctrine doesn't serve a very good purpose.
Mr. Comey: --Your Honor, the... in this case, of course, that's... that's not the... that's not this case because the officer was very clear.
He said exactly what it was for, and then he... when he booked him, Officer Haner even booked him for illegal recording.
So in this case, we're... we're not presented with a vacuum.
But even in an instance where the officer did not state at the instant of the arrest why he was arresting the person, one of the benefits of this doctrine is that it would allow for an objective review of the facts in order to determine--
Justice O'Connor: Well, if the objective review shows that there were, indeed, facts that would have justified an arrest, then what's wrong with allowing that to proceed?
Mr. Comey: --Your Honor, the... the danger of that is that allowing this, as... as I termed it, a general right of arrest with... with no articulated basis at any point up until charging runs contrary to some of the basic principles--
Justice Kennedy: Okay.
What's... what's happening here is in order to avoid the down side of your test... as Justice O'Connor puts it, her point is that if we adopt your rule, there's going to be an incentive not to state the reason.
Now, in order to avoid that... you haven't really squarely confronted it... I think you're suggesting that there has to be an additional rule that the police officer must say why he's arrested, and... and the authorities just don't establish that.
Now, if you want us to go on and make up that rule, I suppose we could make up that rule.
Mr. Comey: --I'll be very happy if you--
Justice Kennedy: And I'm... I'm sure you'd be delighted.
But that's not the case we're confronted with.
And if the choice is between making up a new rule to make your test work or rejecting your test, it seems to me that the... that the latter might be the preferred course.
Mr. Comey: --Well, Your Honor, to sort of piggyback on what Justice Souter and what Justice Ginsburg had commented on, there's no empirical evidence to suggest that there is or would be a movement by police officers towards silence.
There is simply nothing out there that says that police officers have in the past in the six jurisdictions, the six circuits that use this.
There's no evidence that they have remained silent in an effort to--
Justice Scalia: Must... must be very stupid police officers.
I mean, it's... it's just obvious what... what you have to do to make a valid arrest.
If you say nothing, any... any basis that you could have had for the arrest will... will be used.
Whereas, if you... if you mention something, you better be able to substantiate that particular cause or a closely related crime.
Police officers aren't any dumber than the rest of us.
I can't believe that... that that wouldn't be the... the consequence of... of the rule you're asking us to adopt.
Mr. Comey: --Your Honor--
Justice Scalia: To put it this way, it seems to me the burden should be on you to... to tell us why a police... police officers are so stupid that they... that they go around and... and continue to give reasons when that's... when that's going to make it more difficult for them to sustain the arrest and subject them to... to personal liability.
Mr. Comey: --Well, for the most part, Justice Scalia, it does not come back to haunt the officers because the vast majority of arrests are lawful.
The vast majority of officers have probable cause for the thing that they arrest the person for, and they arrest him for criminal conduct.
Justice Ginsburg: But if they're told in this case that they're subject to 1983 liability out of their own pockets if they get it wrong, then it seems to me they would pursue the safe course and say nothing.
I mean, you did say at one point in your brief that when a warrantless arrest is effected, the officer must inform the arrestee of the officer's authority and cause of arrest.
But that's not true on the spot as a matter of Washington law or constitutional law, is it?
Mr. Comey: The issue of... of the constitutionality of that has never been ruled on by this Court.
Justice Ginsburg: Well, you're not urging that the Constitution requires the officer on the spot to state the cause of the arrest, or are you?
Mr. Comey: --Personally, Your Honor, I think that that would... that would certainly comport more with the common law that was extant at the time the Constitution was--
Justice Souter: Well, regardless if it... whether it comports with the common law, I don't see why the rule that you are urging, closely related, is going to make a dime's worth of difference unless ultimately we hold that there is an obligation to state the cause at the time of the arrest.
Mr. Comey: --Because, Your Honor, even if the... even if the cause of the arrest is not stated at the time of the arrest, the person must be booked for something.
There's a... a report that's generated.
In this instance--
Justice Souter: Okay.
The booking occurs after arrest, and I thought what we were concerned with in this case was the validity of the arrest, not the booking.
Mr. Comey: --Correct, Your Honor.
Justice Souter: Okay.
Now, if... if the... if the... if it is the validity of arrest, which... which is in issue, I don't see why your rule is going to make any difference in the long run unless we go the further step and say, in order to make this work, i.e., enforce Fourth Amendment values, at the time of the arrest the cause has got to be stated.
Am... am I missing something?
Mr. Comey: Well, Your Honor, I would analogize it to the... the arrest rule.
Whether someone is or is not under arrest from a Fourth Amendment standpoint is based on an objective test, and it is viewed after the fact.
Justice Souter: Well, based on an objective test, we'll get absolutely nowhere.
The person who is arrested is not in a position to be making objective or subjective assessments, by and large.
He probably knows what he's being arrested for because it's obvious, but then we have cases like this, which are the only ones that are going to be litigated, and he may not know.
The... the fact still, it seems to me, is obvious.
If we go your way, we're going to have to go the further step of requiring the cause to be stated.
Isn't that, as a matter of common sense, true?
Mr. Comey: It would certainly make it easier, but it's not necessary.
Justice Souter: All right.
I'll be candid with you.
I think it is necessary.
But the... I guess the... what I'm getting at in all of this is you're asking us to take steps to solve a problem, and I don't think you've demonstrated what the problem is.
We keep coming back, as we have several times, to the lack of empirical studies.
Have we got something to worry about in... in enforcing Fourth Amendment values that we can only guard against if we go your way?
Mr. Comey: Well, Your Honor, I would say that the fact that there are six circuits that have adopted this policy shows that this is... that this is a problem that occurs nationwide.
Justice Souter: Then what is the... yes, but what's the justification for doing it?
What is the practical problem that we are concerned with?
Mr. Comey: The practical problem is that people are being arrested for conduct that is, at its base, not criminal.
Justice Scalia: But they should have been arrested.
I mean, so long as they should have been arrested, who cares?
In this case, I mean, it'll... it'll be ultimately be tried by a jury I... I guess, but your... your client pulls up behind another car with wig-wag lights flashing, like a police car.
He has a police scanner on the seat next to him.
He has handcuffs.
He has tinted glass in front of the license plate... of his license plate, so it can't be... can't be read.
It seems to me there was obvious probable cause to... to arrest this fellow for impersonating a police officer.
And I would have hoped he would have been arrested so he wouldn't go around and... and pull up behind another car.
What is the problem?
Mr. Comey: Well, Your Honor--
Justice Scalia: It seems to me he should have been arrested, and the... and the mere fact that the police officer gave the wrong reason for arresting him doesn't make me feel very bad about the arrest at all.
I'm glad he was arrested.
Mr. Comey: --I'm going to disagree on two points.
First, at the trial court, the State did not argue that he could have been arrested for other crimes.
The jury was never instructed on the elements of these supposed other crimes.
And we pointed that out in the appeal in the reply brief.
Justice Stevens: Yes, but did you object to the instructions in the trial court?
Mr. Comey: No, Your Honor, because the--
Justice Stevens: One of the problems I have with the case, very frankly, is that the jury has already ruled against your client on the qualified immunity issue carrying out instructions given by the judge that were not objected to by your client.
Mr. Comey: --That's correct, Your Honor, but the only instructions that were given regarding... regarding what they needed to find to find a violation were the Privacy Act instructions.
Justice Stevens: But whose fault is that?
Mr. Comey: Well, Your Honor, I think if the State wanted them to... qualified immunity is an affirmative defense.
If they wanted the State to find... if they wanted the jury to find there was impersonation, they should have requested an instruction on that because impersonation in Washington requires more than simply taking an action that creates an impression that you're an officer.
It also... under first degree, there has to be specific intent to defraud someone, and here the only thing he did, he gave them a flashlight and helped them jack up their car.
On the issue of the wig-wag headlights, the transcript shows that the officer spent a minute or 2, by his own estimation, on the scene behind Mr. Alford's car, saw no wig-wag headlights.
And as for the scanner, the... the transcript, page 246... he admitted at trial it was actually a ham radio, not a portable police scanner.
Justice Ginsburg: But I thought that the reason that the police went after your client after he left the vehicle that was disabled was because the officers at that point suspected that he might be impersonating a police officer.
That's what the people in the... the disabled vehicle told the officer.
They said he had flashing headlights.
We thought he was a police officer.
And... and wasn't the original following of your client triggered by the suspicion that he might be impersonating a police officer?
Mr. Comey: Yes, Your Honor, and that... that... we have not argued that there was not suspicion sufficient to... to have a stop to do investigation.
However, under the Washington statute, there was not evidence sufficient to show probable cause that there was an actual crime--
Justice Kennedy: Under Washington law, is it lawful for your client to have headlights... wig-wag lights?
Mr. Comey: --No, Your Honor.
It is a traffic violation.
That is a non-arrestable offense, and that was admitted at court and also here today.
Justice O'Connor: Was your client ever found guilty of any offense at all?
Mr. Comey: No, Your Honor.
Even the traffic infraction was dismissed by the judge.
Justice Kennedy: But it's unlawful to have wig-wag lights, and I take it it's an arrestable offense to impersonate a police officer.
Mr. Comey: Yes, Your Honor, but that--
Justice Kennedy: So that would... that would certainly be probable cause to arrest just based on the wig-wag, plus the fact he lied to the police in... in instructing them the button to push or didn't tell them what button to push to make them go.
Mr. Comey: --No, Your Honor.
The obstruction charge also under Washington law... under the case law interpreting the statute, there has to not only be the... the hindrance or obstruction.
There has to be specific intent, and there has to be obstruction in fact.
And in this case, both of the officers testified that they... that he pushed every button they asked him to.
He opened the hood for them.
He let them look at the... the flasher unit.
He showed them the manual.
They both say that they saw this button that after the arrest they pushed... one of them pushed.
However, there's obviously no obstruction in fact if... one of them actually said at trial that he didn't ask him to push the button because he wanted to see whether he would push it or not.
So there's no... again, there's no facts to support a finding of probable cause even on the obstruction because the officers were essentially just letting him hang himself.
Justice Scalia: Well, that... that isn't the issue before us here.
I... I assume that for purposes of the question on which we granted certiorari, we have to assume, or else the whole thing doesn't make any sense and it's all... it's all arguing about nothing... we have to assume that there was probable cause on some other ground than the ground which he stated or anything closely related to the ground which... which the officer stated.
Isn't that... isn't that the... the manner in which this case gets to us?
Mr. Comey: Your Honor, we raised the issue at the Ninth Circuit that there had been no evidence put forward on the other crimes.
And we pointed out that even the deputy prosecuting attorney... and in fact, even in closing argument, when they addressed the... the wig-wag headlights, et cetera, they stated specifically that that information went to what they called his intent to unlawfully record.
Justice Scalia: But... but that's not the ground on which the Ninth Circuit decided it.
The Ninth Circuit never had to reach the question of whether there was probable cause on these other grounds--
Mr. Comey: Correct, Your Honor.
Justice Scalia: --because it found, even if there was these other grounds, they're not closely related to the illegal taping.
So I suppose you're telling us that if we find that we do not like the closely related rule, that it's not part of... of United States constitutional law, what we should do is remand to the Ninth Circuit so that they could determine whether there was probable cause on the other grounds.
Mr. Comey: That's exactly right, Your Honor.
And in... in looking at this... this probable cause determination and the reasonableness requirement of the Fourth Amendment, the qualified immunity, of course, was a doctrine that was advanced by the Court to address specific problems.
None of those problems are impacted in any way by the closely related offense, this subset of qualified immunity cases.
Justice Stevens: May I ask one other question about the proceedings in the trial court?
Mr. Comey: Yes, sir.
Justice Stevens: Was there a motion for summary judgment by the defendants claiming, as a matter of law, they should be entitled to qualified--
Mr. Comey: Yes, sir.
Justice Stevens: --And that was overruled.
Mr. Comey: That was denied, yes.
Justice Stevens: And then there was a jury trial and the jury disagreed with it and, in effect, said there... there was basis for qualified immunity.
Mr. Comey: Yes.
Yes, Justice Stevens.
And the... in reviewing the transcript and in reviewing the... the instructions and the ruling on the summary judgment motion, the reason that Senior Judge Bryan did not rule on the qualified immunity was twofold.
One, at the time of the summary judgment motion, one of the officers was... well, was lying about having contacted the prosecutor prior to making the arrest, and he noted in his order that there was a factual dispute.
So summary judgment wasn't appropriate.
And second, Judge Bryan indicated that essentially there was a problem created by the Saucier opinion because he felt that it was somehow possible that there could have been an arrest effectuated without probable cause, but that there was a reasonable mistake on the part of the officers.
So this did not proceed to the jury on the... on this closely related offense doctrine.
It didn't proceed on there were these other crimes for which probable cause existed, but on this broad standard of good faith and reasonable mistake.
Justice Stevens: What is your understanding of the reason for the jury's verdict on this issue?
Mr. Comey: I almost hate to say it, Your Honor, but I believe it was a lack of sympathy.
That... that is my... much like with Justice Scalia, I believe they... they looked at the... the circumstances and even though there was not probable cause to have arrested him, they came to the conclusion we don't like Mr. Alford.
We're not going to find for him.
Justice Stevens: May I ask one other question then too?
Justice Scalia: That's not my reason.
I don't even know the man.
Justice Stevens: In... in your view is the closely related doctrine a... a matter of closely related as a matter of law between two different offenses or is it a matter of... are the facts relevant?
For example, could one argue that these offenses were factually related pretty closely because they grew out of the same central group of facts?
Mr. Comey: In our brief, Your Honor, I often used the phrase same conduct test because in amalgamating the six different circuits, that appeared to be the most consistent test and the one that's most consistent with the objective standard and with the reasonableness standard, that if... and I, again, go to the no harm/no foul.
If you're engaging in conduct that would have and should have led to your arrest, if it's the same conduct for which you were arrested and it's simply misnamed, then there essentially is no harm of constitutional magnitude.
Justice Ginsburg: Well, then you have a very narrow view of closely related.
It comes down to misnomer cases.
It's one thing to say... what the officers told the DA, although after they arrested him... didn't they describe the whole episode from when they saw Alford pull up behind the disabled vehicle?
They described that and they mentioned the flashing lights.
They described the whole episode up till the point where they... the officers apprehended him and saw the equipment and then noticed... they told the DA everything, and he said, yes, you have probable cause.
Mr. Comey: --They did describe the entire episode to him, Justice Ginsburg.
Justice Ginsburg: So why couldn't it be related in time and space rather than legally related?
Mr. Comey: Well, I'm not urging something as narrow as... as a semi-Blockburger test.
But here you have essentially two discrete conducts that were being examined by the officers: number one, the actions surrounding the headlights; and number two, the actions surrounding the taping.
And the trial... I mean, it was very clear that the two were treated as discrete incidents by the police.
At the moment Devenpeck saw the tape recorder... and he testified at trial.
When I saw the recorder in the record mode and saw that it was moving, that's what he stated to him constituted probable cause for the arrest.
The moment he saw that tape recorder and saw the play and record buttons were pushed, he informed Mr. Alford, you're under arrest for making an illegal tape recording.
So when looking at whether something is... is sufficiently related or not, obviously there's going to have to be more than a modicum of logic that's used, but objectively this separates rather nicely into two discrete incidents for the analysis.
Justice Breyer: Why... why is it exactly that a policeman who comes on a difficult scene, gun in one pocket, the guy has a knife in another, and he throws a punch?
Now, the policeman might make a mistake about that.
He... he thought he threw a punch, but he made a mistake.
Now... now, why is a policeman less likely to make that kind of a mistake than make a mistake about what crime to label it?
Mr. Comey: Well, Your Honor, we're not concerned so much... this doctrine is not concerned so much with what to label the crime.
Justice Breyer: No, no.
You said... you... you say everybody agrees in this case that if the policeman had reasonable cause objectively to arrest the person for A, but he arrested him for B instead, there are some circumstances in which that's okay.
And on their view, it's... as long as... it was always okay, really, as long as objectively there was reasonable cause.
On your view, you're going to add a little thing.
You're going to add, and by the way, it's not okay unless that conduct that he looked at was in fact illegal.
So you say... because policemen could make mistakes about labels, but they're not likely to make mistakes about throwing a punch.
So I just wondered why not.
I mean, they got the wrong guy for throwing the punch.
You know, so... so what?
Why is that so... that... that supposedly in your view is some terrible constitutional harm, but if he just mislabels it, it's not a terrible constitutional harm.
And I'm just puzzled as to where that distinction comes from and why.
Mr. Comey: Well, Your Honor, the distinction in... in this particular case and the distinctions in the... in the cases that run the gamut around the circuits generally show one thing that we--
Justice Breyer: --that the circuits all agree with you.
Now, my only problem is it's hard for me to see why they all agree with you.
And... and that's where I'm sort of stuck.
Mr. Comey: --Your Honor, if we start with first principles, and the first principle that underlies this case is there is, from the framing area... era, a general mistrust of warrantless arrests.
From that, we step to the reasonableness clause.
From the reasonableness clause, we then step to this judicially created qualified immunity, which subsumed the good faith analysis.
So what we find is we're stepping further and further away from the original principle.
And the... on the original principles, he was arrested without a warrant.
Under the Constitution we have reasonableness.
Was it a reasonable arrest?
The court has said we generally say that if an arrest has probable cause, then it's reasonable unless there are these exigent circumstances, excessive force, et cetera.
Then under qualified immunity, it's even a step more attenuated, that even though there might not have been probable cause, if there was arguable probable cause, then there would be a violation, but no one is going to be liable for it.
Justice Stevens: Yes, but Mr. Phillips, let me go back first principles.
You are complaining about an arrest which you admit was valid.
Do you not... do... do you not that the arrest was supported by probable cause and therefore was a valid arrest?
Mr. Comey: In this instance, Your Honor?
Justice Stevens: Yes.
Mr. Comey: Certainly not.
Justice Stevens: Oh, I misunderstood.
I thought we were just talking about qualified immunity.
But you challenge the arrest itself even though you admit there was probable cause for the arrest?
Mr. Comey: No, Your Honor, because we don't feel that there was probable cause for the arrest.
Justice Scalia: We don't that challenge that here, though.
I asked you that question earlier, and I thought you agreed that for purposes of our deciding this case, we... we will assume, though you do not concede the point, that there was probable cause on one of the other grounds.
Mr. Comey: That in order to address the Ninth Circuit's holding--
Justice Scalia: Exactly, exactly.
Justice Stevens: And... and there's no need for the Ninth Circuit's rule unless there was probable cause because if there was no probable cause, you win on that ground.
You don't have to get into this closely related offense doctrine.
Is that correct?
Mr. Comey: --If there was probable cause--
Justice Stevens: No.
If there was no probable cause.
Mr. Comey: --Oh, correct.
If there was no probable cause for--
Justice Stevens: Then you win without this fancy doctrine.
Mr. Comey: --That's... that is correct, Your Honor, and that was--
Justice Stevens: This... this doctrine only comes into play and is only required in cases involving a valid arrest and a... a mistake by the officer in identifying the wrong cause for the arrest.
So it's an extension of the qualified... it's a... it's a... an application of the qualified immunity doctrine to say you are not protected even though you acted lawfully.
Mr. Comey: --Well, because it actually... to turn it back around, you're not protected because you did not act lawfully.
You did not act lawfully because--
Justice Stevens: No, but if you say the arrest was valid, he did act lawfully although we didn't realize the reason why he did.
Mr. Comey: --Your Honor, the cases that have examined this doctrine have... have looked at it as sort of straddling the Fourth Amendment and the qualified immunity analysis.
Justice Souter: But... but don't you reconcile the... the problem of the straddle by saying that unless the probable cause, which we will assume existed, is for a closely related offense, the whole arrest was invalid?
Isn't that your position?
Mr. Comey: Correct.
Justice Souter: Okay.
Now, let me ask you... you one other question.
You... you started out in getting down to first principles with disfavor of warrantless arrests.
Would your position be different if the officer had somehow gotten an arrest warrant on the spot for illegal taping?
Wouldn't you be making the same argument?
Mr. Comey: Certainly, Your Honor, and there we would--
Justice Souter: So it has nothing to do, essentially, with warrantless or nonwarrantless arrests.
Mr. Comey: --Well, in this case it does, but had there been a warrant--
Justice Souter: Well, in this... yes, but on your theory, that is... that is incidental.
That is not essential.
If he had had an arrest warrant for illegal taping, you'd be making the same argument.
Mr. Comey: --That there was no probable cause for the arrest.
Justice Souter: That's... that's right.
Mr. Comey: Correct, Your Honor.
Justice Souter: Yes.
Mr. Comey: And I think that that... of course, that... as we point out in our brief, there's support for that, that historically the warrant must show the reason that someone is being arrested.
So as we pointed out, there's this... an odd--
Justice O'Connor: Well, you don't have any case law to cite to us for that.
That gets us into a whole new doctrine.
Mr. Comey: --Well, Your Honor, I think one of the most fundamental principles that we can look at on showing the reason why you're being arrested is the great writ of habeas corpus where, in order to hold someone, they must show why he is being held.
Justice Ginsburg: But you've already conceded that it... Washington law doesn't require the officer on the spot to say why he's making the arrest and that there's no decision of this Court or any court that I know that said the Constitution requires the officer on the spot to give a reason.
Mr. Comey: That's correct, Your Honor.
So what we have posited and what the Ninth Circuit... what they did in the Gasho case, for example, is after the fact you can look at the actions that were taken by the officers, the booking sheet, et cetera, to give you some objectively verifiable evidence of the cause for the arrest.
And really what it's looking at is there needs to be a nexus between conduct and arrest, and--
Justice Stevens: Thank you, Mr. Phillips.
Ms. Hart, you have 5... 5 minutes.
Rebuttal of Maureen A. Hart
Mr. Hart: I think I'd only like to make one point, Your Honors, and that is that the Fourth Amendment does not make the validity of arrest a game that the government loses even when there's probable cause for arrest, but the closely related offense doctrine does.
And for that reason, it should be rejected and we respectfully ask the Court to reverse the decision of the Ninth Circuit.
Justice Stevens: Thank you, Ms. Hart.
The case is submitted.
Argument of Justice Scalia
Mr. Comey: I have the opinion of the Court to announce in Case No. 03-710, Devenpeck versus Alford.
This case comes to us on writ of certiorari to the Ninth Circuit.
Officer Joi Haner, a member of the Washington State Patrol and one of the petitioners here, stopped a car driven by respondent Jerome Alford on the basis of Haner’s suspicion that earlier along the highway, Alford had been impersonating a police officer when assisting some stranded motorists.
Haner’s questioning of Alford during the stop bolstered this suspicion.
Alford was listening to the radio frequency of the police department of a neighboring county.
He had handcuffs and a hand-held police scanner in his car.
He claimed to have worked in law enforcement first in Washington and then in Texas but later changed that story, and he claimed not to know how to turn on the wig-wag headlights that the stranded motorists had told Haner he used when he came to their assistance, saw their headlights that flashed alternately one side and the other.
These lights were, Alford told Haner, part of a recently installed car alarm system.
When the other petitioner in this case Sergeant Gerald Devenpeck arrived at the scene of the stop, Alford told him as well that he did not know how to activate the wig-wag headlights.
Both officers were skeptical and rightly so since it turned out that the light were activated by a button close to the driver’s knee which Alford carefully avoided pressing.
But before Devenpeck finished questioning Alford he saw that Alford was tape recording their conversation believing this to be illegal, he told Alford that he was under arrest for violating the State Privacy Act.
Alford protested that there was a State Court of Appeals decision that allowed him to tape conversations with the police officers but the officers were not impressed.
Haner took Alford into custody and cited the Privacy Act defense at booking.
As it turned out, Alford was right, the Washington Court of Appeals had held five years earlier that because road side conversation with police officers are not private within the meaning of the State Privacy Act.
It was not illegal to record them without the officer’s consent and the District Court dismissed the charge.
Alford sued both Devenpeck and Haner in Federal Court under state law and under 42 United States Code Section 1983 alleging that the officers violated his Fourth and Fourteenth Amendment rights by arresting him without probable cause.
The District Court denied the officers’ motion for qualified immunity and the case went to trial.
The jury returned a unanimous verdict in favor of the officers.
The Ninth Circuit however ordered a new trial.
As relevant to our decision today, it held that Alford’s arrest was necessarily unconstitutional because tape recording officers is not a crime in Washington.
The Court of Appeals rejected the officer’s argument that there was probable cause to arrest Alford for either impersonating or obstructing a police officer.
Those offenses, it said, were neither based on the same facts as nor closely related to the offense invoked by Devenpeck when he arrested Alford, and they were there for irrelevant to the Fourth Amendment probable cause inquiry.
Finding no basis in our precedent or in reason for this limitation on the probable cause inquiry we reversed the Ninth Circuit.
There is probable cause to arrest when the facts known to the arresting officer would cause a reasonable officer to believe that a crime has been committed.
Except for asking what facts the arresting officer knew, this inquiry is an objective one, the arresting officer subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.
A fortiori there need not be any relationship much less a close one between the offense articulated by the arresting officer at the time of arrest and the offense for which there is probable cause.
Whereat otherwise a knowledgeable veteran officer could by reciting a litany of possible offenses validate an arrest that a rookie officer possess to precisely the same facts would be unable to perfect.
We see no reason to ascribe to the Fourth Amendment's such arbitrarily variable protections.
As we said in an earlier case called Whren versus United States, “The Fourth Amendment’s concern with reasonableness allows certain actions to be taken in certain circumstances whatever the subjective intent.”
The closely related offense rule is also 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.
Thus, the probable consequence of the closely related offense rule is not that officers will seek making so-called “sham arrests’ but rather that they will seized providing reasons for arrest all together and even if officers were required to provide a reason for arrest, they would simply give every reason for which probable cause could conceivably exist.
For these reasons and others expressed in our opinion today we reject the closely related offense rule.
We remand this case to the Ninth Circuit so that it may conduct the inquiry that the closely-related offense rule enabled it to avoid namely whether the facts known to the officers here provided a probable cause to arrest for either obstructing or impersonating a police officer.
The decision is unanimous except that the Chief Justice took no part in the decision.
I also have an opinion to announce on behalf of the Chief Justice in case No. 03-407, Kowalski versus Tesmer.
That case came to us on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit.
Michigan provides that an appeal by an accused who has pled guilty is by leave of court not a matter of right.
Michigan State Judges must deny appointed appellate counsel to indigents who plead guilty and do not meet certain criteria.
Two attorneys and three indigents challenged Michigan’s procedure for appointing appellate counsel in Federal District Court.
They alleged that the procedure violated the equal potection and due process rights of the indigents.
The District Court agreed.
The Court of Appeals for the Sixth Circuit heard the case en banc and affirmed in relevant part.
It held the two attorneys had standing to bring the suit although the three indigent defendants had to be dismissed on the basis of the so-called Younger Doctrine which prevents Federal Court interference with ongoing state criminal proceedings.
We granted certiorari.
Today in an opinion by the Chief Justice we hold that the two attorney respondents lack third party standing to assert the rights of the indigents.
Accordingly, we reverse without reaching the constitutionality of the Michigan procedure.
A party generally must assert his own rights and not those of another.
Under the doctrine of third party standing however, we have made an exception to this general rule.
To determine whether third party standing is appropriate we have focused on two questions: We have asked first whether the person asserting the right has a close relationship with the person possessing the right; and second, whether there is a hindrance to the possessor’s ability to protect his own right.
Here, the attorneys attempt to assert the rights of hypothetical indigent offenders who will request in the future but be denied appellate counsel under Michigan’s procedure.
We do not believe these attorneys have a close relationship with these hypothetical indigents.
Indeed, they do not have relationship at all.
We also do not believe there is the necessary hindrance to the indigents asserting their own equal protection and due process rights to challenge the procedure.
The indigents have open avenues in State and Federal Court to assert their rights against the Michigan procedure, and in fact some indigents without the aid of an attorney have advanced their claims to the Michigan Appellate Courts and to this Court.
This disproves the attorney’s theory that without the assistance of an attorney the indigents are unable to assert their own rights.
On a more fundamental level, if the indigents were hindered by the lack of an attorney, that hindrance could have been solved by the attorneys before us here attending State Court and assisting them without charge.
Finally, the indigents themselves appropriately were dismissed as I said earlier under the Younger Doctrine preventing Federal Court interference with ongoing State criminal proceedings and unwillingness to allow our Younger Principle to be the circumvented is an additional reason to deny the attorney’s third party standing.
Accordingly, the judgment of the Court of Appeals is reversed.
Justice Thomas has filed a concurring opinion; Justice Ginsburg has filed a dissenting opinion in which Justices Stevens and Souter have joined.