Devenpeck, Gerald, et al. v. Alford, Jerome (12/13/2004)
Questions presented: (1) Does an arrest violate the 4th 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 the line clearly established when there was a split in the circuits regarding the application of the "closely related offense doctrine?"
BY ALEXIA GARAMFALVI, MEDILL NEWS SERVICE
While driving to his night job in Kitsap County, Wash., in November 1997, Jerome Alford saw a disabled car on the shoulder of the highway. Alford pulled over, helped the car’s owners jack it up, gave them a flashlight and went back to his own vehicle. Washington State Trooper Joi Haner had seen the stranded car and Alford pulling up behind it while driving in the opposite direction. He turned around at the first opportunity, and when he arrived back at the scene Alford was returning to his car.
When Haner spoke with the motorists they told her they believed that Alford was a police officer because of his alternating "wig-wag" headlights. Concerned that Alford was impersonating a police officer, Haner drove in pursuit of Alford and called his supervisor, Sergeant Gerald Devenpeck.
When Haner pulled Alford over, he noticed that Alford had an amateur radio tuned into the Kitsap County sheriff’s office, a microphone attached to the radio, handcuffs, and a portable police scanner. Haner asked Alford to activate the wig-wag lights, but Alford was not able to and claimed they had been installed that day as part of an alarm system. After Devenpeck arrived on the scene he also asked Alford about the lights. While they were talking, Devenpeck noticed that Alford had a tape recorder on the passenger seat recording the conversation, and arrested Alford for making an illegal tape recording in violation of the state’s Privacy Act.
Having had a similar problem before, Alford told the state troopers that he had a copy of a Washington Court of Appeals opinion in his glove compartment that stated that the Privacy Act does not apply to police officers performing official duties. Devenpeck called Deputy Prosecuting Attorney Mark Lindquist while Alford was on his way to jail to verify whether there was probable cause for the arrest. He, however, did not mention the case Alford had cited. Lindquist confirmed to Devenpeck that there was clearly probable cause for the arrest.
Alford spent the night in jail on the charge of making an illegal tape recording of a private conversation. A state court judge later dismissed the charge against him.
Alford then filed suit against the officers in federal court, under 42 U.S.C. " 1983, a federal civil rights law which provides remedies for violations of constitutional rights under color of state law, and state law claims for unlawful arrest and imprisonment. Following a jury trial in January 2001, the jury found for the defendants.
On June 23, 2003, a divided 9th Circuit Court of Appeals panel reversed, finding that the officers conduct violated Alford’s 4th Amendment rights when the charge they arrested him for turned out not to be supported by probable cause, even though another basis on which to arrest him existed and would have been supported by probable cause.
The court wrote that in order to prevail on a Section 1983 action, a plaintiff has to prove that the conduct complained of was committed by a person "acting under the color of state law" and that the "conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States."
Stating that there was no dispute that the police officers acted under the color of state law, the court immediately turned to whether the officers’ conduct deprived Alford of any constitutional rights. Alford claimed that the arrest violated the 4th Amendment’s prohibition on arrests made without probable cause. Probable cause exists if an officer "has reasonable belief … that a crime has been, is being, or is about to be committed."
The 9th Circuit concluded that tape recording police officers during a traffic stop is not a crime in Washington State because a traffic stop does not constitute a private conversation. Thus the officers did not have probable cause to arrest Alford for violating the Privacy Act.
The officers claimed that because they had probable cause for arresting Alford for another offense -- impersonating a police officer -- his rights were not violated. The law of a number of states, including Washington state, and that of several federal circuits provides that even if there was not probable cause to arrest for the crime the arresting officer cited, an arrest is valid if there was probable cause to arrest a person for some criminal offense.
The court rejected the officers’ argument, reasoning that the law in the 9th Circuit is that "probable cause may still exist for a closely related offense even if that offense was not invoked by the arresting officer as long as it involves the same conduct for which the suspect was arrested."
Since any charge of impersonating an officer would be based on Alford’s use of wig-wag lights and not on his tape recording, the court found that the offense was not closely related to the conduct for which Alford was arrested – tape recording, reasoned Judge James Browning.
The officers had also argued that under Section 1983 they were entitled to qualified immunity from suit because a reasonable officer would have believed that Alford’s conduct violated the Privacy Act. The 9th Circuit wrote that to determine whether a police officer would be entitled to qualified immunity, it must first consider whether the law governing the official’s conduct was clearly established, so that a reasonable official would understand that what he was doing was wrong. If so, an official can still be entitled to immunity if he can show that a "reasonable police officer could have believed, in light of the settled law, that he was not violating a constitutional right."
Applying this test, the 9th Circuit concluded that the law was clearly established that tape recording a police officer performing an official function on a public road was not a violation of the Privacy Act.
The court found that no reasonable officer could have thought that Alford’s tape recording constituted a violation of the Privacy Act because the act prohibited only the recording of private conversations and the law clearly established that a traffic stop is not a private encounter. Furthermore, "the legal distinction the officers were asked to make here was not a difficult one: taping private conversations is illegal, taping a traffic stop is not," wrote Browning.
Even if the boundaries of the Privacy Act were clearly established it does not mean that the legality of the officers’ conduct was clearly established, noted Michael Lynch, senior counsel, at the Washington State Attorney General’s office. He argued that since Washington law provided that probable cause can be supported by any facts and circumstances known to the arresting officer, not just by the crime articulated by the officer as the reason for the arrest, and that even 9th Circuit law on probable cause was not clearly established prior to the decision in this case, the officers could not have known whether their arrest violated Alford’s 4th Amendment rights or not.
Lynch worries that the "closely related offense doctrine will frustrate the administration of justice by encouraging law enforcement officers to stack charges" in order to ensure the existence of probable cause, avoid potential "1983 civil rights liability, and avoid any suppression of evidence that would flow from arrests not supported by probable cause.
In his dissent, Judge Ronald Gould disagreed strongly with the court’s finding that the police officers were not entitled to qualified immunity. Gould wrote that the officers reasonably believed that Alford’s tape recording of a traffic stop was illegal under the Privacy Act. Gould argued that a literal reading of the statute gives support to the arrests and noted that the statute does not on its face carve out an exception for tape recording police officers. In fact, it is an intermediate appellate court opinion that sets forth that tape recording police officers is not a violation of the Privacy Act. According to Gould, "the crux of the issue is whether it is a reasonable mistake of law for officers not to abide by an interpretive appellate precedent of which they were not aware." Gould also cites the fact that the police officers, clearly concerned with doing the right thing, even checked with a prosecutor to verify whether Alford’s behavior violated the Privacy Act.
Gould criticized the majority, stating its opinion "oppresses law enforcement, and relies on an unworkable legal fiction that presumes police officers must be aware of all state court of appeals decisions." In conclusion, Gould quoted from another 9th Circuit case: "It may be argued that judges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or analyze Fourth Amendment developments with a law professor’s precision. We do not expect police officers to do those things."
On April 19, 2004, the U.S. Supreme Court accepted the case for review, and on Dec. 13, the Court reversed, holding 8-0 for police, finding they have the authority to arrest suspects on charges that later fall apart, so long as they had another valid reason for the detention.
In writing the opinion for the Court, Justice Antonin Scalia rejected the "closely related" rule, saying that because the state of mind of officers is not relevant to probable cause, it does not matter what motivates an officer in making an arrest. In so reasoning, Scalia indicated that the Court's conclusion should make arrests less arbitrary, less subjective, and less subject to differences among officers.
Chief Justice William Rehnquist, who did not attend the oral arguments for health reasons, took no part in the decision of the case.