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Probable Cause and Objective Reasonableness U.S. Supreme Court

Jack Ryan

In Devenpeck v. Alford, 543 U.S.___, 2004 U.S. LEXIS 8272 (2004), the United States Supreme Court examined a case where officers, with probable cause to arrest a subject, Jerome Alford for impersonating a police officer, instead arrested him for tape recording the officers during the investigatory stop. A previous court decision held that it was not illegal to tape police officers during a stop. In the ensuing lawsuit, the United States Court of Appeal determined that only probable cause for a closely related offense would save the officers from liability and impersonating a police officer was not a closely related offense to violation of the state privacy act by tape recording.

While on patrol, Officer Haner of the Washington State Patrol observed a broken down motorist on the opposite side of the highway. Prior to Officer Haner’s arrival at the disabled motorist, Jerome Alford pulled up behind the motorist with wig-wag headlights activated. When Officer Haner arrived, Alford quickly left, leaving his flashlight behind. The motorist who had broken down asked Officer Haner if the quickly departing Alford was a police officer. The motorist inquired based upon Alford’s lights as well as conversation at the scene.

Officer Haner notified his supervisor, Sergeant Davenpeck of his concern that Alford was impersonating a police officer. Haner then pursued and pulled Alford over. He noted that Alford had a police radio on the front seat and was monitoring radio calls; that he had a police scanner and handcuffs. Alford reported that his wig-wag lights were part of a newly-installed alarm system and that he could not activate them. Officer Haner noted that there was a switch neat Alford’s leg that he would not touch. [It turned out that this switch activated the wig-wag lights]

Sergeant Devenpeck responded to the scene and was briefed by Officer Haner. As Devenpeck was questioning Alford, he noticed a tape recorder running in the record mode on the front seat. Sergeant Devenpeck listened to the recording which contained the conversation from the stop. He then ordered Alford arrested for violating the Washington State Privacy Act which required all-parties to conversation- consent for recording. The sergeant attempted to contact a prosecutor from the scene after Alford reported that he had a copy of a state court decision in his glove box which allowed such a recording.

Alford was taken to the police station and a prosecutor was called. The prosecutor outlined various charges including the impersonating charge for which there was probable cause. Sergeant Devenpeck reported that it was the policy of the State Patrol not to “stack charges” and that he would simply charge Alford with the charge related to the tape recording. The charge was subsequently dismissed due to a state court decision and Alford filed a lawsuit alleging that he was arrested without probable cause.

In the United States Court of Appeal for the 9th Circuit, the officers argued that they had probable cause to arrest Alford based on the impersonation of a police officer charge as well as obstructing, even if the court found that there was not probable cause for the taping charge. The 9th Circuit concluded that in order for the arrest to be valid under the 4th Amendment, officers must have probable cause to support the asserted offense on which the arrest is based or at least a closely related offense. Here the asserted offense was the tape recording charge and there was no probable cause to arrest for that charge.

The United States Supreme Court overturned the decision of the 9th Circuit in reiterating the position that an officer’s subject intent [with respect to the charge being brought] is irrelevant. Under the 4th Amendment a court must determine probable cause from the standpoint of the objectively reasonable officer standing in the arresting officers’ position. Here, there was objectively reasonable basis for finding probable cause to believe that Alford was impersonating a police officer and obstructing the officers, therefore the arrest was valid. The court expressly rejected any notion that officers must have probable cause for the stated offense or some closely-related offense. Officers simply must have an objectively reasonable belief that probable cause exists to arrest for some offense.

Key Points:

Officers need not assert a specific offense for which they are arresting a suspect for at the moment of arrest

Officers need not “stack charges” in order to cover all possible offenses for which there is probable cause

In determining the existence of probable cause-Is there probable cause to believe that some offense has occurred.

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