No. 03-710
IN THE MORRIS TYLER MOOT COURT OF APPEALS AT YALE
Fall 2004 Term
GERALD DEVENPECK, ET. AL
Petitioners,
v.
JEROME ANTHONY ALFORD,
Respondent.
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
BRIEF FOR PETITIONER GERALD DEVENPECK
####
Counsel of Record
Yale Law School
127 Wall Street
New Haven, Connecticut 06511
(203) 123-4567
QUESTION PRESENTED
Should the Fourth Amendment’s objective probable cause standard be modified to invalidate an
arrest in which a police officer states an offense not closely related to the one for which he has
probable cause?
PARTIES TO THE PROCEEDINGS
Petitioners:
Gerald Devenpeck, Sgt., Washington State Patrol
Joi Haner, Washington State Patrol Officer
Jane Doe Haner, Wife of Joi Haner
Jane Doe Devenpeck, Wife of Gerald Devenpeck
Respondent:
Jerome Anthony Alford
ii
TABLE OF CONTENTS
QUESTION PRESENTED ......................................................................................................... ii
PARTIES TO THE PROCEEDINGS ......................................................................................... ii
TABLE OF CONTENTS ........................................................................................................... iii
TABLE OF AUTHORITIES ..................................................................................................... iv
OPINIONS BELOW ................................................................................................................... 1
JURISDICTION ......................................................................................................................... 1
STATEMENT OF FACTS ......................................................................................................... 1
SUMMARY OF ARGUMENT .................................................................................................. 4
ARGUMENT .............................................................................................................................. 6
I. OBJECTIVE PROBABLE CAUSE FOR THE CRIMES COMMITTED IN
PETITIONERS’ PRESENCE IS SUFFICIENT TO JUSTIFY RESPONDENT’S ARREST 6
A. The Fourth Amendment Requires Solely Objective Probable Cause for Arrests Like
That of Respondent ............................................................................................................. 6
B. The Closely Related Offense Test Should Not Apply to Alford’s Arrest Because It
Does Not Constitute Objective Probable Cause Analysis ................................................ 13
II. THE CLOSELY RELATED OFFENSE TEST IS INCOMPATIBLE WITH ANY
FOURTH AMENDMENT ANALYSIS BECAUSE IT DAMAGES
CONSTITUTIONALLY PROTECTED INTERESTS ........................................................ 16
A.
Closely Related Offense Test Severely Damages Fourth Amendment Interests ...... 16
B.
Closely Related Offense Test Offers No Benefits To Offset Its Severe Detriment.. 18
C.
Courts Already Possess Effective Tools To Protect Against Sham Arrests ............. 21
III. EVEN IF CONSTITUTIONAL, THE CLOSELY RELATED OFFENSE TEST
SHOULD NOT APPLY TO THIS CASE ............................................................................ 23
CONCLUSION ......................................................................................................................... 24
iii
TABLE OF AUTHORITIES
Cases
Alford v. Haner, 333 F.3d 972 (2003) .............................................................................. 13, 19, 20
American Communications Ass'n v. Douds, 339 U.S. 382 (1950) ............................................... 14
Arkansas v. Sullivan, 532 U.S. 769 (2001) ............................................................................... 8, 16
Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ....................................................... 7, 8, 16, 20
Barnett v. United States, 384 F.2d 848 (5th Cir. 1967) ................................................................ 15
Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990) ............................................................................. 17
Beck v. Ohio, 379 U.S. 89 (1964). .............................................................................................. 3, 7
Biddle v. Martin, 992 F.2d 673 (7th Cir. 1993) ................................................................ 16, 17, 19
Bingham v. City of Manhattan Beach, 341 F.3d 939 (9th Cir. 2003) ............................... 19, 20, 23
Boyd v. United States, 116 U.S. 616 (1886) ................................................................................. 10
Brinegar v. United States, 338 U.S. 160 (1949). ................................................................ 7, 13, 16
Carroll v. United States, 267 U.S. 132 (1925)............................................................................ 6, 8
County of Riverside v. McLaughlin, 500 U.S. 44 (1991).............................................................. 22
Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002) ........................................................ 24
Dunaway v. New York, 442 U.S. 200 (1979)). ................................................................................ 8
Edwards v. City of Philadelphia, 860 F.2d 568 (3d Cir. 1988) .................................................... 17
Elkins v. United States, 364 U.S. 206 (1960)................................................................................ 22
Gantt v. Whitaker, 57 Fed. Appx. 141 (4th Cir. 2003) ................................................................ 17
Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994) .................................................................. 24
Gerstein v. Pugh, 420 U.S. 103 (1975) ..................................................................................... 8, 18
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................................................................................. 20
iv
Henry v. United States, 361 U.S. 98 (1959)............................................................................ 10, 11
Kladis v. Brezek, 823 F.2d 1014 (7th Cir. 1987) .......................................................................... 15
Klingler v. United States, 409 F.2d 299 (8th Cir. 1969) ......................................................... 16, 19
Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) ........................................................................... 14
Linn v. Garcia, 531 F.2d 855 (8th Cir. 1976) ............................................................................... 17
Logue v. Dore, 103 F.3d 1040 (1st Cir. 1997) .............................................................................. 15
Mapp v. Ohio, 367 U.S. 643, 552 (1961) ...................................................................................... 22
Maryland v. Pringle, 540 U.S. 366 (2003) ................................................................................. 8, 9
Massachusetts v. Sheppard, 104 U.S. 3434 (1984) ...................................................................... 22
McNeely v. United States, 353 F.2d 913 (8th Cir. 1965) ........................................................ 17, 19
Mills v. Wainwright, 415 F.2d 787 (5th Cir. 1969)..................................................... 13, 15, 19, 24
Ornelas v. United States, 517 U.S. 690 (1996). .............................................................................. 9
Payton v. New York, 445 U.S. 573 (1980) ...................................................................................... 8
Richardson v. Bonds, 860 F.2d 1427 (7th Cir. 1988) ................................................................... 17
Scott v. United States, 436 U.S. 128 (1978).................................................................................. 14
Sheehy v. Town of Plymouth, 191 F.3d 15 (1st Cir. 1999) ......................................... 13, 15, 19, 24
State v. Flora, 845 P.2d 1355 (Wash. Ct. App. 1992) .................................................................... 3
State v. Hollis, 161 Vt. 87 (1993) ................................................................................................. 21
State v. Kimball, 54 Haw. 83 (1972) ............................................................................................. 21
Stone v. Powell, 428 U.S. 465 (1976) ........................................................................................... 22
Tennessee v. Garner, 471 U.S. 1 (1985) ....................................................................................... 12
Terry v. State of Ohio, 392 U.S. 1 (1968) ................................................................................. 6, 12
Trejo v. Perez, 693 F.2d 482 (5th Cir. 1982) .......................................................................... 14, 20
v
United States v. Atkinson, 450 F.2d 835 (5th Cir. 1971) ....................................................... passim
United States v. Bowers, 458 F.2d 1045 (5th Cir. 1972) ........................................................ 14, 19
United States v. Fossler, 597 F.2d 478 (5th Cir. 1979) ................................................................ 24
United States v. Martinez, 465 F.2d 79 (2d Cir. 1972) ........................................................... 16, 24
United States v. Reed, 349 F.3d 457 (7th Cir. 2003) .................................................................... 13
United States v. Saunders, 476 F.2d 5 (5th Cir. 1973) ........................................................... 14, 24
United States v. Watson, 423 U.S. 411 (1976).................................................................. 4, 7, 8, 20
United States v. Wells, 283 U.S. 102 (1931)................................................................................. 14
United States v. Whiteside, 22 Fed. Appx. 453 (6th Cir. 2001) .................................................... 24
Vance v. Nunnery, 137 F.3d 270 (5th Cir. 1998) .......................................................................... 17
Warrick v. State, 634 S.W.2d 707 (Tex. Crim. App., 1982) ......................................................... 21
Welsh v. Wisconsin, 466 U.S. 740 (1984) ................................................................................. 8, 12
Whren v. United States, 517 U.S. 806 (1996) ........................................................................ passim
Williams v. Jaglowski, 269 F.3d 778 (7th Cir. 2001) ................................................................... 16
Wilson v. Arkansas, 514 U.S. 927 (1995) ............................................................................... 20, 21
Wyoming v. Houghton, 526 U.S. 295 (1999) .................................................................................. 7
Statutes
Wash. Rev. Code Ann. § 46.16.233 (2004). ................................................................................... 2
Wash. Rev. Code Ann. § 9.73.030 (2004). ..................................................................................... 3
Wash. Rev. Code Ann. § 9A.60.40-45 (2004) ................................................................................ 2
Wash. Rev. Code Ann. § 9A.76.023 (2004) ................................................................................... 2
Other Authorities
County Must Study Superior Court Backlog, The Bellington Herald, Sept. 23, 2004.................. 18
vi
Docket Clutter, The Press-Enterprise (Riverside, Calif.), Sept. 5, 2004, at D2............................ 18
Lance Pugmire, Judge to Defer Civil Court Hearings; Riverside County Moves To Address Its
Chronic Backlog Of Criminal Cases By Suspending Other Sessions In Riverside And Indio,
The Los Angeles Times, May 15, 2004, at B12 ....................................................................... 18
Leonard W. Levy, Origins of the Bill of Rights (1999) ................................................................ 12
Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States
Constitution (1937) ......................................................................................................... 6, 10, 11
Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999) 10
Virginia Declaration of Rights (June 12, 1776) ............................................................................ 11
Treatises
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3d ed. 1996 &
Supp. 2004). .......................................................................................................................... 8, 22
vii
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Ninth Circuit is reported at 333
F.3d 972 (9th Cir. 2003). The opinion of the United States District Court for the Western District
of Washington is unpublished.
JURISDICTION
Petition for certiorari was filed with this Court on November 6, 2003. Certiorari was
granted on April 19, 2004. 124 S.Ct. 2014 (2004). This Court’s jurisdiction is invoked under 28
U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized. U.S. Const. amend. IV.
STATEMENT OF FACTS
Jerome Anthony Alford is not a law enforcement officer. However, he drove a car with
many of the accoutrements of the profession. Outfitted with the wig-wag, or alternating,
headlights typical of police vehicles, Alford’s car also contained an amateur radio broadcasting
the Kitsap County’s Sheriff’s Office, a microphone attached to the radio, and a portable police
scanner. Alford carried handcuffs in the car.
Alford’s headlights alone were sufficient to convince others that he was a police officer.
On the night of November 22, 1997, Alford, driving his unusually outfitted car, approached a car
stranded parked on the side of Washington State Highway 16. Seeing the type of headlights they
1
associated with police vehicles, the car’s occupants thought that Alford was a law enforcement
officer.
Shortly after their encounter with Alford, the motorists were met by Officer Joi Haner.
Officer Haner had been patrolling Highway 16 that night when he saw Alford’s car slowing to
pull in behind a disabled car parked alongside the road. Concerned for the safety of the car’s
occupants, Officer Haner turned around, approached the vehicles, spoke with their occupants,
and learned that Alford’s appearance had convinced them he was a police officer, partly because
of his wig-wag headlights.
The conversation convinced Officer Haner that Alford was committing the crime of
impersonating a police officer. See Wash. Rev. Code Ann. § 9A.60.40-45 (2004). Concerned
about the apparent crime, Officer Haner left the motorists, called Sergeant Gerald Devenpeck for
backup, and pulled Alford over. Although the wig-wag headlights were off, Officer Haner
noticed the other police-like features of Alford’s vehicle: the radio, the microphone, and the
police scanner. Alford told him that he had handcuffs in the car. Furthermore, Officer Haner
noticed an additional legal issue. Alford’s license plate was partially illegible due to a tinted
license plate cover, which was also prohibited by state law. See Wash. Rev. Code Ann. §
46.16.233 (2004).
When Sergeant Devenpeck arrived, the two officers asked Alford about the wig-wag
headlights, which he claimed he could not turn on. They became convinced that Alford was
criminally obstructing them. See Wash. Rev. Code Ann. § 9A.76.023 (2004). Then, as the
questioning continued, a third apparent crime emerged. Sergeant Devenpeck noticed a tape
recorder on the passenger seat of Alford’s car. When he played the tape inside, he discovered
that Alford had been taping the entire encounter. Despite Alford’s protestations, Sergeant
2
Devenpeck thought the recording violated the states’ prohibition on recording of private
conversations. See Wash. Rev. Code Ann. § 9.73.030 (2004).
Rather than allow Alford to continue committing what appeared to be three criminal
offenses, Sergeant Devenpeck arrested Alford. To ensure the arrest’s legitimacy, Sergeant
Devenpeck double-checked his assessment of the situation with Deputy Prosecuting Attorney
Mark Lindquist, who assured him before Alford reached jail that there was “clearly probable
cause” for arrest. Lindquist believed that probable cause for arrest was based primarily on
conduct other than the tape recording. However, he did not explain this reasoning to Sergeant
Devenpeck and Sergeant Devenpeck chose to base his citation solely on the tape recording, the
potential offense about which the two law enforcement officers learned last.
Sergeant Devenpeck’s law enforcement instincts were correct in arresting Alford, whom
a reasonable police officer would have believed was violating at least one Washington State
criminal law. However, Sergeant Devenpeck, whose job does not require a law degree, made a
less astute legal judgment. He cited Alford for making an illegal audio recording of a private
conversation without knowledge or consent. However, contrary to Sergeant Devenpeck’s belief,
the Privacy Act does not apply to recordings of police officers performing official duties, State v.
Flora, 845 P.2d 1355 (Wash. Ct. App. 1992), and the charge was dismissed.
The appeal now before this Court concerns the legality of Officer Haner’s and Sergeant
Devenpeck’s arrest of Alford, under 42 U.S.C. § 1983. Sergeant Devenpeck and Officer Haner
had probable cause to arrest Alford for impersonating a police officer and obstructing justice. In
other words, “the facts and circumstances within [their] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing that
[Alford] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964).
3
They also believed they had probable cause to arrest Alford for violating privacy laws.
At the District Court, the jury upheld the validity of this arrest for which there was
probable cause. The district court denied Alford’s motion for a new trial. Nevertheless, the Ninth
Circuit found that Sergeant Devenpeck’s poor legal judgment in articulating an offense unrelated
to the ones for which there was actual probable cause should vitiate the arrest’s Fourth
Amendment validity. The court’s decision turned on a test that contradicts deeply-rooted
Supreme Court doctrine. At issue now before this Court is whether the Ninth Circuit’s test – the
closely related offense test– should supplement Fourth Amendment analysis in order to
invalidate this arrest.
SUMMARY OF ARGUMENT
Since United States v. Watson, 423 U.S. 411 (1976), courts have relied on one clear,
objective standard to justify routine, warrantless arrests for offenses committed in the presence of
a law enforcement officer: the existence of probable cause. The court of appeals erred in finding
that this well-established standard should not suffice to evaluate the petitioner’s arrest of the
respondent. If probable cause objectively existed for any offense at the time of Alford’s arrest, it
should be valid under the Fourth Amendment, regardless of what offense the petitioner chose to
articulate upon arrest.
Based both on modern practice and the Fourth Amendment’s origins, the objective
probable cause standard has emerged as the most effective possible to support the fundamental
privacy and law enforcement interests at stake in routine arrests like Mr. Alford’s. The standard
has only failed to protect the appropriate interests when an individual’s privacy interests are
exceptionally strong or an individual’s physical safety is risked during an arrest.
Such exceptional circumstances are far beyond the reach of this case. The petitioners
4
arrested the respondent on the street, in public, for offenses they witnessed, using routine police
procedures. Nevertheless, the circuit court proposes supplementing or replacing the probable
cause standard simply because among three possible offenses committed in his presence, the
petitioner mistakenly chose to articulate upon arrest the one for which a court found there was
the least probable cause.
The closely related offense test requires not only that probable cause exist for an arrest,
but also that officers exercise astute enough legal judgment to articulate at the time of arrest an
offense that is closely related to the one for which there is probable cause. The test embodies far
more than a rejection of a standard of analysis deeply embraced by this Court. In its form and its
effect, the new test harms the fundamental interests that any Fourth Amendment standard must
protect. The test encourages officers to multiply the citations or charges that they lodge against
arrestees. This multiplication of charges is not for any law enforcement aim, but purely to protect
the legality of officers’ arrests, lest their own amateur legal judgment differ from the trained
judgment of a court or a magistrate. By distorting officers’ judgment, the test skews
communities’ ability to enforce the law according to the public safety interests that should guide
such work. Moreover, it directly threatens an increase in the type of unfounded charges that the
Fourth Amendment originally aimed to eliminate.
The circuit court has accepted these grave weaknesses in its doctrine in the name of
preventing sham arrests. However, the closely related test does far less to prevent or punish sham
arrests than two already existing tools: the Forty-Eight-Hour Rule and the Exclusionary Rule.
Moreover, the court’s concern for sham arrests is not applicable in this case. The facts clearly
establish that while Sergeant Devenpeck’s judgment may have been faulty, he never intended the
arrest as a sham.
5
ARGUMENT
I.
OBJECTIVE PROBABLE CAUSE FOR THE CRIMES COMMITTED IN
PETITIONERS’ PRESENCE IS SUFFICIENT TO JUSTIFY RESPONDENT’S
ARREST
Throughout their colonial history, Americans were subject to indiscriminate and arbitrary
searches and seizures by law enforcement officers authorized to search and arrest on no more
than their own suspicion. Colonial leaders and drafters of the Fourth Amendment rejected such
wide grants of discretion, framing the Fourth Amendment to constrain officers’ discretion in the
interest of individuals’ privacy, without unduly hampering their ability to enforce the law. See
generally Nelson B. Lasson, The History and Development of the Fourth Amendment to the
United States Constitution (1937). Since then, this Court has preserved the dual aims of
individual privacy and community law enforcement through “a severe requirement of specific
justification for any intrusion upon protected personal security, coupled with a highly developed
system of judicial controls to enforce upon the agents of the State the commands of the
Constitution.” Terry v. State of Ohio, 392 U.S. 1, 11 (1968). Although this Court’s exact
methods have changed over time, its starting point for determining reasonability has always been
the standard named in the Amendment: the existence of probable cause. See e.g, Carroll v.
United States, 267 U.S. 132 (1925). The respondent’s assertion that probable cause was
insufficient for his arrest must be measured against the Court’s long reliance on the standard to
effectively balance privacy and law enforcement interests.
A.
The Fourth Amendment Requires Solely Objective Probable Cause for Arrests
Like That of Respondent
Fourth Amendment analysis begins with an inquiry into the common law at the time of
the Amendment’s framing and continues with a balancing of individuals’ privacy interests and
6
government’s law enforcement interests. Wyoming v. Houghton, 526 U.S. 295, 300 (1999). Both
inquiries dictate that for offenses occurring within an officer’s presence, the Fourth Amendment
imposes a single requirement on arrests: an objective finding of probable cause. With or without
a warrant, an arrest’s constitutionality “depends… upon whether at the moment the arrest was
made, the officers had probable cause to make it.” Beck v. Ohio, 379 U.S. 89, 91 (1964). The
standard for probable cause is objective, measuring only whether “the facts and circumstances
within [officers’] knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the [arrestee] had committed or was
committing an offense.” Id. at 91.
1. History justifies the sole reliance on probable cause because “the judgment of the
Nation and Congress has for so long been to authorize warrantless public arrests on probable
cause,” United States v. Watson, 423 U.S. 411, 423 (1976). “[A]ncient common-law,” as well as
state constitutions and statutes, permit officers “to arrest without a warrant for a misdemeanor or
felony committed in his presence as well as for a felony not committed in his presence if there
was reasonable ground for making the arrest.” Id. at 418-19 (1976); see also Atwater v. City of
Lago Vista, 532 U.S. 318, 329-332 (2001) (reviewing history of warrantless arrests).
The Fourth Amendments’ core interests further confirm the sufficiency of the standard.
After considering other interest balancing tests, this Court has found that probable cause analysis
“afford[s] the best compromise that has been found for accommodating … [the] often opposing
interests [of privacy and law enforcement]. Requiring more would unduly hamper law
enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers'
whim or caprice.” Brinegar v. United States, 338 U.S. 160, 176 (1949).
Accordingly, this Court has repeatedly confirmed since Brinegar that probable cause
7
constitutes not only the “necessary inquiry,” Watson, 423 U.S. at 417, but also the sole inquiry to
secure people against unreasonable arrest for offense committed in their presence. Watson found
it sufficient for a felony arrest in a public space. Atwater v. City of Lago Vista, 532 U.S. 318
(2001), “confirm[ed] … what … prior cases have intimated,” that even for misdemeanors, “the
probable-cause standard applies to all arrests, without the need to balance the interests and
circumstances involved in particular situations.” 532 U.S. at 354 (citing Dunaway v. New York,
442 U.S. 200, 208 (1979). More specifically, “[a] warrantless arrest of an individual in a public
place for a felony, or a misdemeanor committed in the officer's presence, is consistent with the
Fourth Amendment if the arrest is supported by probable cause.” Maryland v. Pringle, 540 U.S.
366 (2003); see also Payton v. New York, 445 U.S. 573 (1980); Carroll v. United States, 267
U.S. 132, 156 (1925); see generally 3 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment §5.1 (3d ed. 1996 & Supp. 2004).
This Court has repeatedly reinforced the sufficiency of probable cause by explicitly
rejecting proposed additions to Fourth Amendment analysis. Although recognizing that
“[m]aximum protection of individual rights could be assured by requiring a magistrate's review
of the factual justification prior to any arrest,” this Court “has never invalidated an arrest
supported by probable cause solely because the officers failed to secure a warrant,” Gerstein v.
Pugh, 420 U.S. 103, 113 (1975) (citations omitted), except for arrests within a home. See, e.g.,
Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v. New York, 445 U.S. 573 (1980). This Court
has also rejected proposals to replace probable cause analysis with a balancing test, Atwater v.
City of Lago Vista, 532 U.S. 318 (2001), Whren v. United States, 517 U.S. 806 (1996) or
supplement it with consideration of the officers’ good faith, Arkansas v. Sullivan, 532 U.S. 769
(2001), or consideration of exigent circumstances, United States v. Watson, 423 U.S. 411, 424
8
(1976).
The few exceptions to this doctrine do not apply to the petitioner’s arrest of Alford. This
Court has only supplemented or rejected probable cause analysis in unusual cases that “involved
searches or seizures conducted in an extraordinary manner, unusually harmful to an individual’s
privacy or even physical interests -- such as, for example, seizure by means of deadly force,
unannounced entry into a home, entry into a home without a warrant, or physical penetration of
the body.” Whren v. United States, 517 U.S. 806, 818 (1996) (citations omitted). It is undisputed
that these circumstances are far from this case. The petitioners’ arrest of Mr. Haner was routine.
The discrepancy between petitioners’ articulation of an offense and the offense for which there
was probable cause does not implicate Mr. Haner’s privacy or physical interests.
2. The objectivity of Fourth Amendment analysis is as deeply rooted in this Court’s
doctrine as the probable cause standard. “On many occasions, [the Court has] reiterated that the
probable-cause standard is a practical, nontechnical conception that deals with the factual and
practical considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” Maryland v. Pringle, 540 U.S. 366 (2003) (citations omitted). It turns only on,
“the events which occurred leading up to the stop or search, and … the decision whether these
historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to
… probable cause.” Ornelas v. United States, 517 U.S. 690, 697 (1996).
The Founding Fathers deliberately used the Fourth Amendment to extinguish the role of
officers’ subjective opinions in validating arrests. Written to reduce arbitrary arrests at the hands
of overpowered local officials, the Fourth Amendment embodies a conscience policy decision
that protection from unreasonable search and seizure is best accomplished by: (1) an evaluation
of the facts known before arrest and (2) outside validation – or objective judgment – of that
9
evaluation.
The Fourth Amendment aimed to address the harms of two British and colonial practices:
the general warrant and writs of assistance, which James Otis called “the worst instrument of
arbitrary power, the most destructive of English liberty, and the fundamental principles of law,”
Boyd v. United States, 116 U.S. 616, 624 (1886) (quoting James Otis).
The general warrant, in which the name of the person to be arrested was left blank, and
the writs of assistance … perpetuated the oppressive practice of allowing the police to
arrest and search on suspicion. Police control took the place of judicial control, since no
showing of ‘probable cause’ before a magistrate was required.
Henry v. United States, 361 U.S. 98, 100 (1959). The writs’ evil was in the “practically absolute
and unlimited” discretion granted to their recipients. Nelson B. Lasson, The History and
Development of the Fourth Amendment to the United States Constitution 54 (1937). A customs
officer with a writ of assistance had a lifetime permit to “take with him a civil officer and search
any house, shop, warehouse, etc.; break open doors, chests, packages, in case of resistance; and
remove any prohibited or uncustomed goods or merchandise.” Id. at 53. Thus, James Otis
inveighed, the writs “placed ‘the liberty of every man in the hands of every petty officer.’” Boyd,
116 U.S. at 624.
To reduce the writs’ arbitrariness, opponents faced several policy options. They could
promote the “good faith” of officers to ensure they exercised their discretion more humanely. Or,
they could limit officers’ discretion. The opponents chose the latter. Framing-era leaders
“expressed outright disdain for the character and judgment of ordinary officers” and thought
“magistrates were more capable than ordinary officers of making sound decisions as to whether a
search was justified.” Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich.
L. Rev. 547, 577 (1999). They believed even officers’ good faith judgment was flawed. Id. at
578. So they rejected any scheme that relied on officers’ subjective judgments as the sole basis
10
for arrest.
The First Continental Congress captured the lack of trust in officers’ judgments in a 1774
letter to the King. The letter complained of writs of assistance: “[O]fficers of the customs are
empowered to break open and enter houses, without the authority of any civil magistrate,
founded on legal information.” Lasson, supra, at 75 (citation omitted). The writs’ problem,
therefore was their lack of formal authorization, or limits on discretion, rather than their
improper exercise. Correspondingly, Virginia, then Pennsylvania, and then other states used their
declarations of rights to limit officers’ discretion. Unlike the writs of assistance, the declarations
required specific evidence to support officer’s suspicions of a place or person. The Virginia
Declaration of Rights (June 12, 1776) proclaimed, “That general warrants, whereby any officer
or messenger may be commanded … to seize any person or persons not named, or whose offence
is not particularly described and supported by evidence, are grievous and oppressive, and ought
not be granted.” See generally Henry v. United States, 361 U.S. 98, 100 (1959); Lasson, supra, at
80.
The Fourth Amendment combined and clarified the declarations’ approach. Like the
declarations, the Amendment outlined policies, in addition to articulating a right. The Warrant
Clause combined the specific evidence requirement with the “oath or affirmation” requirement to
maintain the focus on limiting, rather than improving officers’ discretion to arrest. Congress
underscored its intent with statute.
[A] statute enacted before the framing of the Fourth Amendment required
magistrates to issue a warrant on the basis of the officer’s suspicion, not on the
magistrate’s independent judgment of the question of whether probable cause
existed.
… The magistrate in effect accepted the officer’s sworn statement that he
was acting in good faith. That is difficult to reconcile with the fact that the good
faith execution of a general warrant by a customs officer in the years before the
Revolution did not, to American whigs, validate the warrant or the seizures under
11
it.
The adoption of the Fourth Amendment changed the situation drastically.
In March 1792, before the amendment had been formally ratified… Congress
enacted a …statute [that] reflected the meaning of the Fourth Amendment… [It]
explicitly empowered magistrates to decide for themselves whether an officer had
probable cause.
Leonard W. Levy, Origins of the Bill of Rights 178-179 (1999).
Under this original framework, neither officers’ suspicions, nor their good faith, nor their
statements could validate an arrest. Still today, only the judgment of an objective third party
should suffice.
Anything less would invite intrusions upon constitutionally guaranteed rights
based on nothing more substantial than inarticulate hunches, a result this Court
has consistently refused to sanction. And simple good faith on the part of the
arresting officer is not enough. If subjective good faith alone were the test, the
protections of the Fourth Amendment would evaporate, and the people would be
‘secure in their persons, houses, papers and effects,’ only in the discretion of the
police.
Terry v. State of Ohio, 392 U.S. 1, 22 (1968) (citations omitted).
Since the Amendment’s drafting, on the rare occasions when this Court has strayed from
probable cause analysis, it has retained the objectivity of Fourth Amendment analysis, evaluating
the actual consequences of officers’ actions rather than officers’ subjective intent. In balancing
the interests involved in a seizure by deadly force, the Court weighed the suspect’s interest in his
own life and the objective interests of society and rejected a proposal that officers’ subjective
evaluation of risk should justify seizures by deadly force. Tennessee v. Garner, 471 U.S. 1, 1011 (1985). In evaluating the privacy interests implicated by a warrantless arrest in a home, the
Court measured the gravity of the alleged crime – a traffic offense – against the objective
standard of penalties for first-offenders and weighed it against the exigent circumstances
determined only according to the facts of the case. Welsh v. Wisconsin, 466 U.S. 740, 743
(1984).
12
B.
The Closely Related Offense Test Should Not Apply to Alford’s Arrest Because It
Does Not Constitute Objective Probable Cause Analysis
Fourth Amendment analysis should never accommodate the closely related offense test1
on which the Ninth Circuit relied to invalidate Alford’s arrest because it rejects both of the
entrenched limitations on Fourth Amendment analysis. As supplemental to probable cause, it
rejects this Court’s deep-rooted faith in the sufficiency of probable cause for validating an arrest.
It additionally rejects the objectivity of Fourth Amendment analysis by making constitutionally
relevant Sergeant Devenpeck’s subjective choice about which offense to name upon arresting
Alford. Rather than evaluating the facts available upon arrest, the test makes Fourth Amendment
validity turn on the relationship between the offenses for which there was probable cause to
arrest Alford and the alternate offense articulated by Sergeant Devenpeck.
1. The objectivity of Fourth Amendment analysis means that this Court has “been
unwilling to entertain Fourth Amendment challenges based on the actual motivations of
individual officers.” Whren v. United States, 517 U.S. 806, 813 (1996). It has understood that
“[b]ecause many situations which confront officers in the course of executing their duties are
more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes
must be those of reasonable men …” Brinegar v. United States, 338 U.S. 160, 176 (1949)
(upholding probable cause standard). Therefore, under the objective standard, “[t]he fact that the
1
The closely related offense test requires that if an officer states an offense upon arrest, it must be closely related to
the offense for which there is probable cause in order for the arrest to be valid. Different jurisdictions have created
different definitions of “closely related.” In its most liberal form, the test only requires that the offense stated and the
offense for which probable cause exists be “in some fashion related.” Mills v. Wainwright, 415 F.2d 787, 790
(1969). In its strictest form, the test requires that the offense stated and the offense for which there is probable cause
“relate to the same conduct” and “share similar elements or be directed generally at prohibiting the same type of
conduct.” Sheehy v. Town of Plymouth, 191 F.3d 15, 20 (1st Cir. 1999). The third form of the test requires that the
offense for which there is probable cause “reasonably be based on the same set of facts that gave rise to the arrest.”
United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003) Alternatively, the offense stated and the offense for which
there is probable cause could be based on the same conduct. Alford v. Haner, 333 F.3d 972, 976 (2003). The
discussion in this brief uses “closely related offense test” to refer to any of these formulations.
13
officer does not have the state of mind which is hypothecated by the reasons which provide the
legal justification for the officer's action [should] not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.” Scott v. United States, 436 U.S. 128, 138
(1978).
The irrelevance of officers’ motivations to Fourth Amendment analysis extends to
officers’ statements about grounds for arrest. Although they may suggest some of the facts
available to officers upon arrest, such statements are no more than “the outward manifestations
of state of mind.” American Communications Ass’n v. Douds, 339 U.S. 382, 411 (1950); see also
United States v. Wells, 283 U.S. 102, 113 (1931). They reflect officers’ subjective analysis of the
facts, their meaning, and how the arrestee should be treated in response. See, e.g., Lee v. Ferraro,
284 F.3d 1188 (11th Cir. 2002) (rejecting officer’s statement of grounds for arrest as a factor in
objective qualified immunity inquiry because of statement’s subjectivity); United States v.
Saunders, 476 F.2d 5 (5th Cir. 1973) (rejecting officer’s statement of grounds for arrest as factor
in Fourth Amendment analysis because of statement’s subjectivity); United States v. Bowers, 458
F.2d 1045 (5th Cir. 1972).
The Fifth Circuit misunderstood the nature of the closely related offense test in
suggesting that it could be construed objectively. Struggling to reconcile the test with a
requirement for objectivity, the court suggested that the tests avoids subjective analysis if it does
not require that “an officer must have in mind at the time of the arrest any offense later used to
justify the arrest.” Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982). This attempt to reconcile
the test with an objective standard is little more than an exercise in verbal gymnastics. Indeed,
the closely related offense doctrine does not require that an officer have in mind at the time of
arrest the exact offense for which there is probable cause. However, it does require officers to
14
have in mind one of a narrow range of offenses for which a close relationship could be found
with the offense supported by probable cause. Moreover, the test aims to divine any subjective
intent to use an arrest as a pretext for a separate investigation. See Mills v. Wainwright, 415 F.2d
787, 790 (5th Cir. 1969). Thus, “[a]lthough framed in empirical terms, this approach is plainly
and indisputably driven by subjective considerations.” Whren v. United States, 517 U.S. 806, 814
(1996) (rejecting as subjective a test described in objective terms that aimed to reveal officers’
intentions.)
2. Even if an objective reading is possible, the closely related offense test should play no
role in Fourth Amendment analysis because the amendment imposes no information requirement
on law enforcement officers. “Although the police would do well to inform arrested persons of
the charges against them, the Fourth Amendment does not require the police to do so,” Kladis v.
Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987); see also Barnett v. United States, 384 F.2d 848 (5th
Cir. 1967). Correspondingly, “what the arrestee knows or does not know at the time of his
apprehension is irrelevant...” Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1997). to Fourth
Amendment validity. For probable cause analysis, the information given to and held by arrestees
shows neither the facts available to officers upon arrest nor how a prudent officer would evaluate
them. Moreover, such information has no bearing on the underlying privacy and law
enforcement interests protected by the Fourth Amendment.
3. The purpose of the closely related offense test is as incompatible with Fourth
Amendment doctrine as its method. Lower courts promote the closely related offense test to
prevent arrests intended as shams , arrests “simply ... employed by the police to discover
evidence to further connect” the arrestee with another crime, Mills v. Wainwright, 415 F.2d 787,
790 (5th Cir. 1969); see also Sheehy v. Town of Plymouth, 191 F.3d 15, 19-20 (1st Cir. 1999);
15
Biddle v. Martin, 992 F.2d 673, 677 (7th Cir. 1993); Klingler v. United States, 409 F.2d 299,
304-05 (8th Cir. 1969), or the ex post facto justifications needed to uphold them. Williams v.
Jaglowski, 269 F.3d 778, 783 (7th Cir. 2001); United States v. Martinez, 465 F.2d 79, 82 (2d Cir.
1972); United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971). However, under this Court’s
objective Fourth Amendment doctrine, the intent to effect a sham arrest is inconsequential to the
validity of an arrest because it is purely subjective. Arkansas v. Sullivan, 532 U.S. 769, 771-772
(2001); Whren v. United States, 517 U.S. 806, 812-183 (1996).
II.
THE CLOSELY RELATED OFFENSE TEST IS INCOMPATIBLE WITH ANY
FOURTH
AMENDMENT
ANALYSIS
BECAUSE
IT
DAMAGES
CONSTITUTIONALLY PROTECTED INTERESTS
Regardless of its form, Fourth Amendment analysis must balance private and public
interests regarding arrests. It should “safeguard citizens from rash and unreasonable interferences
with privacy and from unfounded charges of crime,” while “giv[ing] fair leeway for enforcing
the law in the community’s protection.” Brinegar, 338 U.S. at 175. Even if this Court finds that
Alford’s circumstances require a departure from the probable cause standard, the closely related
offense test merits no role in constitutional analysis of his arrest because it contradicts both sets
of Fourth Amendment-protected interests.
A.
Closely Related Offense Test Severely Damages Fourth Amendment Interests
When probable cause exists for an arrest, the closely related offense test punishes officers
who only articulate an offense unrelated to the one for which there is probable cause. Faced with
punishment, it is unreasonable to expect law enforcement officers to improve the precision of
their legal judgment.
Such a requirement could be dangerous to the arresting officer and would be an
additional unnecessary burden on enforcement officials. The law cannot expect a
16
patrolman, unschooled in the technicalities of criminal and constitutional law,
following the heat of a chase, to always be able to immediately state with
particularity the exact grounds on which he is exercising his authority.
McNeely v. United States, 353 F.2d 913, 918 (8th Cir. 1965). Even police officers with highly
refined legal acumen would sometimes fail to predict the separate legal judgment of a magistrate,
judge or jury, whose careful consideration of a set of facts in a courtroom differs dramatically
from an officer’s rushed evaluation on the side of a dark highway. Thus, officers faced with the
new test will “charge every citizen taken into custody with every offense they thought he could
be held for in order to increase the changes that at least once charge would survive the test for
probable cause.”2 United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971). Alternatively,
“officers could simply remain silent.” Richardson v. Bonds, 860 F.2d 1427, 1430 (7th Cir.
1988).3
This multiplication of charges severely compromises the privacy and law enforcement
interests protected by the Fourth Amendment. As long as one articulated offense is sufficiently
related to an offense for which there is probable cause, the closely related offense test is
indifferent to officers’ articulations of other, unfounded charges. Thus common sense dictates
that officers who multiply charges or citations to protect an arrest’s legality will also increase the
number of unfounded charges, in hopes that one will stick. The impact on arrestees will be
dramatic. Probable cause hearings within forty-eight hours weed out many, if not most,
unfounded charges. Yet even forty-eight hours of detention until a probable cause hearing can
2
Consistent with objective probable cause analysis, several circuits have held that Fourth Amendment validity only
requires probable cause for one of multiple charges. Gantt v. Whitaker, 57 Fed. Appx. 141 (4th Cir. 2003); Barry v.
Fowler, 902 F.2d 770 (9th Cir. 1990); Edwards v. City of Philadelphia, 860 F.2d 568 (3d Cir. 1988); Linn v. Garcia,
531 F.2d 855 (8th Cir. 1976).
3
McNeely, Atkinson and Bonds have both regarded as precedent for the closely related offense test. See e.g., Biddle
v. Martin, 992 F.2d 673 (7th Cir. 1993) (citing Bonds); Vance v. Nunnery, 137 F.3d 270 (5th Cir. 1998) (citing
Atkinson). As these cases recognize, the closely related offense test may be less problematic than a requirement that
officers articulate the exact offense for which there is probable cause. However, the closely related offense test
preserves the problems they associate with this more conservative requirement.
17
“imperil [a] suspect’s job, interrupt his source of income, and impair his family relationships.”
Gernstein v. Pugh, 420 U.S. 103, 114 (1975). This harm will increase with the number of
charges, well-founded or not. Alford’s friends and colleagues certainly would have reacted more
poorly to the news of his arrest if instead of being cited for one misdemeanor, he had been cited
for three entirely unfounded criminal charges, criminal impersonation of a police officer,
criminal obstruction of a law enforcement officer, illegal use of a tinted license plate cover, and
illegal possession of headlights.
The test’s impact on law enforcement is equally deleterious. It distorts communities’ law
enforcement methods by compelling officers to increase charges beyond what they think mere
law enforcement requires. Finally, increased numbers of charges clog “already heavily
encumbered,” United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971), local judicial
systems. See, e.g., County Must Study Superior Court Backlog, The Bellington Herald, Sept. 23,
2004, at 9A; Docket Clutter, The Press-Enterprise (Riverside, Calif.), Sept. 5, 2004, at D2; Lance
Pugmire, Judge to Defer Civil Court Hearings; Riverside County Moves To Address Its Chronic
Backlog Of Criminal Cases By Suspending Other Sessions In Riverside And Indio, The Los
Angeles Times, May 15, 2004, at B12.
B.
Closely Related Offense Test Offers No Benefits To Offset Its Severe Detriment
The closely related offense test offers no additional protection of fundamental interests
that would offset its grave negative impacts. In the jurisdictions that have adopted it, the test is a
weakly reasoned doctrine with no clear links to the purpose or practice of the Fourth
Amendment.
Courts mischaracterize the test as an effective tool in preventing arrests intended to be
18
shams. See, e.g., Sheehy v. Town of Plymouth, 191 F.3d 15, 19-20 (1st Cir. 1999); Biddle v.
Martin, 992 F.2d 673, 677 (7th Cir. 1993); Klingler v. United States, 409 F.2d 299, 304-205 (8th
Cir. 1969); Mills v. Wainwright, 415 F.2d 787, 790 (5th Cir. 1969). However, the test is an
overly blunt tool whose indirectness of the test makes it severely unbroad. Officers intending a
sham arrest can skirt the test simply by articulating no offense upon arrest. Alternatively, as
without the test, officers who are smart – and lucky – enough to realize post-arrest the existence
of probable cause for a closely related offense are still be able to pass the test, regardless of their
original intent. Conversely, the test’s inflexibility make it also severely overbroad. Officers’
decisions about which offense to articulate are often heat-of-the-moment decisions that reflect a
combination of their law enforcement priorities and amateur legal judgment, as well as any
personal motivation. As this case shows, and courts have frequently recognized, officers
balancing these multiple priorities may often fail to articulate upon arrest either the offense or the
behavior which there is the most or best probable cause, without any bad faith. If, as in this case,
the officer knows the arrestee appears to be committing multiple, unrelated offenses at the same
time, even the best-intentioned officer may fail to pass the closely related offense test. Despite
the best intentions, he may still mispredict a court’s assessment of the situation, mistakenly
articulating an offense that a court finds fails the closely related offense test. See, e.g., Klingler v.
United States, 409 F.2d 299, 304-305 (8th Cir. 1969); United States v. Bowers, 458 F.2d 1045,
1047 (5th Cir. 1972); McNeely v. United States, 353 F.2d 913, 918 (8th Cir. 1965).
Even the proponents of the closely related offense test have recognized its weaknesses in
their limited use of it. Shortly after applying the closely related offense test in this case, Alford v.
Haner, 333 F.3d 972 (2003), the Ninth Circuit upheld an arrest despite the officers’ failure to
meet the closely related offense test. Bingham v. City of Manhattan Beach, 341 F.3d 939 (9th
19
Cir. 2003). Its latter reasoning shows the test’s fallibility. The court states that the test, aimed to
ferret out sham arrests, did not apply in this case because the facts shown in district court prove
that the arrest was not a sham. 341 F.3d at 951-2. In other words, the court recognized that
objective factual analysis was sufficient to legitimate an arrest, without any consideration of the
officer’s statements about grounds for arrest.4
Federal and state practice additionally expose the test’s irrelevance. This Court relies on
state and federal practice to show what constitutes “reasonable” arrests. See e.g., Atwater v. City
of Lago Vista, 532 U.S. 318, 351 (2001) (considering early and current state practice regarding
warrantless arrests and finding, “The very fact that the law has never jelled the way Atwater
would have it leads one to wonder whether warrantless misdemeanor arrests need constitutional
attention.”); Wilson v. Arkansas, 514 U.S. 927 (1995) (considering early state practice regarding
“knock and announce” principle); United States v. Watson, 423 U.S. 411 (1976) (considering
history of Congress’s practices relating to sufficiency of probable cause analysis). State and
federal practice suggest no other reason to supplement objective probable cause analysis with the
4
The Ninth Circuit alternatively suggests that rather than supplementing probable cause analysis, the closely
related offense test is a shortcut necessary to maintain the objectivity of probable cause analysis. However, even this
weakened construction misinterprets this Court’s Fourth Amendment regime. In the context of qualified immunity,
which also requires objective reasonableness, the Ninth Circuit found,
Even if we were not compelled by our precedent to consider only whether probable cause may
have existed for closely related offenses based on the same conduct for which Alford was arrested,
to hold otherwise would improperly turn the objective reasonableness inquiry into an inquiry into
the officers’ subjective motivations or beliefs at the time of arrest.
333 F.3d 972, 976 n.2 (2003).
This finding is a misinterpretation of a Fifth Circuit case, Trejo v. Perez, 693 F.2d 482 (5th Cir. 1982). In
Trejo, the court attempted to reconcile two binding precedents regarding qualified immunity for Fourth Amendment
claims: the Supreme Court’s rejection of subjective analysis in Harlow v. Fitzgerald, 457 U.S. 800 (1982) and the
Fifth Circuit’s assertion of the closely related offense test in United States v. Atkinson, 450 F.2d 835 (5th Cir. 1971).
The Ninth Circuit read this attempt at reconciliation to conclude that the closely related offense test itself “obviates
the need for a delicate subjective inquiry,” and maintains judgment based on “whether a reasonable police officer
would have believed an offense was being committed.” 333 F.3d at 976 n.2 (citations omitted). However, the Fifth
Circuit’s actual conclusion is to the contrary. The Fifth Circuit struggles in Trejo to reconcile Harlow’s
objectiveness requirement with Atkinson’s closely related offense test, and finds that the only way to “obviate[] the
need for a delicate subjective inquiry” is to find a way to read the Atkinson test objectively. 693 F.2d at 486.
The Trejo court was also guilty of misinterpretation, in its assertion that Atkinson and the closely related
offense test can be read objectively. Supra Part I.B.
20
requirements of the closely related doctrine. Like the documents and philosophies on which the
Fourth Amendment is based, see supra Part I.A, state constitutions and statutes on search and
seizure make no mention of officers’ intentions, officers’ statements, good faith, or any
consideration thereof in determining the legality of an arrest. The three or more state
jurisdictions that have discussed the difference between officers’ stated grounds for arrest and
the actual offense for which there is probable cause have addressed relied on circuit court
precedent to discuss federal constitutional implications, rather than state statutory or state
constitutional concerns. See e.g., State v. Hollis, 161 Vt. 87, 95 (1993); Warrick v. State, 634
S.W.2d 707 (Tex. Crim. App., 1982); State v. Kimball, 54 Haw. 83 (1972). Furthermore,
Congress has excluded any mention of the intentions, statements, or good faith of federal
officials in explaining the authority of federal officials empowered to make arrests. 18 U.S.C.§
3051-55. (2004). This dearth of state and federal practice is in stark contrast to the situation in
Wilson, where the Court found for the “knock and announce” practice a “longstanding commonlaw endorsement” that it traced to British case law from the 1700s through 20th century Supreme
Court precedent. 514 U.S. at 934.
C.
Courts Already Possess Effective Tools To Protect Against Sham Arrests
This Court should not adopt the closely related offense test even if it finds the test can
prevent some sham arrests. American courts already have two judicially created rules, the FortyEight-Hour Rule and the Exclusionary Rule, that strongly reduce the harms of and incentives for
pretextual arrests without creating the negative effects associated with the closely related offense
test or unduly punishing non-sham arrests like that of Jerome Alford.
The Forty-Eight-Hour Rule sets a strict time limit on the harm stemming from an
unreasonable arrest. Requiring a magistrate’s review of probable cause within forty-eight hours
21
of any warrantless criminal arrest, County of Riverside v. McLaughlin, 500 U.S. 44, 55-58
(1991), the rule minimizes harm to individuals’ liberty interests by ensuring prompt release for
victims of unreasonable arrests. The rule additionally moderates against ex post facto revision of
facts because forty-eight hours allow little time for facts to be lost, re-interpreted, or invented.
The Exclusionary Rule, by contrast, gives officers a strong ex ante incentive to avoid
sham arrests. The rule permits the exclusion at trial of evidence obtained through illegal arrests
and with bad faith. It “is calculated to prevent, not to repair. Its purpose is to deter to compel
respect for the constitutional guaranty in the only effectively available way -- by removing the
incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 218 (1960); see also
Massachusetts v. Sheppard, 468 U.S. 981 (1984) (describing good faith exception); Stone v.
Powell, 428 U.S. 465, 484 (1976) (confirming the rule’s deterrent purpose).
In testing similar rules, states have found “other remedies have been worthless and
futile,” Mapp v. Ohio, 367 U.S. 643, 552 (1961). States’ failure to find a better test is a “good
reason for maintaining a healthy skepticism about any proposal to abandon [or supplement] the
exclusionary rule in favor of some other supposed remedy.” LaFave, supra, §1.2. The 48-Hour
and Exclusionary Rule vigorously moderate against sham arrests. Indeed, criticism of the
Exclusionary Rule focuses on its efficaciousness in limiting arrest, rather than its ineffectiveness.
Id. Unlike the closely related offense test, they do so by promoting both the privacy and law
enforcement interests protected by the Fourth Amendment. To these established rules, the closely
related test would add little to be desired and a tremendous amount that our Constitution and our
law enforcement systems would forcefully reject.
22
III.
EVEN IF CONSTITUTIONAL, THE CLOSELY RELATED OFFENSE TEST
SHOULD NOT APPLY TO THIS CASE
Even if found to be a constitutional supplement to probable cause analysis, the closely
related offense test should not apply to Sergeant Devenpeck’s arrest of Alford. The facts of this
case clearly establish that Sergeant Devenpeck intended no sham when he arrested the
respondent for a violation of state privacy laws. The test should only be applied when courts
have a reasonable concern that an arrest was intended to be a sham.
Officer Haner and Sergeant Devenpeck initiated contact with Alford because they knew
he was probably criminally impersonating a police officer. Although Sergeant Devenpeck chose
to articulate a different grounds for arrest, it is undisputed that both Sergeant Devenpeck and
Officer Haner knew of and were questioning him about the possible criminal impersonation
before they made the arrest. Also before the arrest, they found concrete evidence to justify their
concern about Alford’s criminal impersonation. In light of these facts, it is unreasonable to
suppose that Sergeant Devenpeck chose to arrest Alford on an unfounded charge as a pretext to
investigate another offense. The officers already had sufficient information to arrest Alford for at
least one other offense. Rather, it is clear that Sergeant Devenpeck’s choice reflects the natural
disparity between a police officer’s spur-of-the-moment prioritization of possible offenses
according to law enforcement interests and a judge’s carefully reasoned prioritization of the
same, according to legal interests. Cf. Bingham v. City of Manhattan Beach¸ 341 F.3d 939, 952
(2003).
The Ninth Circuit has correctly recognized that the closely related offense test, at
maximum, should apply when sham arrests are a strong concern. Where the “concerns regarding
sham arrests and ex post facto excuses are not implicated,” ordinary objective probable cause
analysis should suffice to justify an arrest. Bingham v. City of Manhattan Beach¸ 341 F.3d 939,
23
952 (2003).
If this Court decides that the closely related offense test should replace well-established
Fourth Amendment standards in other cases, optional use of it would best fulfill the test’s goals
better than required use. Optional application would permit courts to smoke out sham arrests,
while limiting the damage to fundamental privacy and law enforcement interests to select cases.
Other courts’ applications of the closely related offense test support such selective use.
The circuit courts that have considered the test more frequently use it to uphold arrests rather
than to invalidate them. See, e.g., Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir.
2002); United States v. Whiteside, 22 Fed. Appx. 453, 458 (6th Cir. 2001); Sheehy v. Town of
Plymouth, 191 F.3d 15, 19-20 (1st Cir. 1999); Gasho v. United States, 39 F.3d 1420, 1427 n.6
(9th Cir. 1994); United States v. Fossler, 597 F.2d 478, 482 (5th Cir. 1979); United States v.
Martinez, 465 F.2d 79, 82 (2d. Cir. 1972). But see Mills v. Wainwright, 415 F.2d 787 (5th Cir.
1969). Despite prior and subsequent use of the test to uphold arrests, some courts have chosen
not to apply the closely related offense test when it could invalidate an arrest. Compare United
States v. Saunders, 476 F.2d 5 (1973) (upholding an arrest despite its failure to meet pass closely
related offense test) with United States v. Fossler, 597 F.2d 478 (5th Cir. 1979) and United
States v. Atkinson¸ 450 F.2d 835 (5th Cir. 1971) (applying the test to uphold an arrest).
The circuit court’s application of the closely related offense test to Alford’s arrest was an
error. The petitioners’ unambiguous realization of probable cause before Alford’s arrest make it
inapplicable to the specific facts of this case. The closely related offense test’s harm to
constitutionally protected interests makes it highly undesirable for any case.
CONCLUSION
For the foregoing reasons, the judgment of the U.S. Court of Appeals for the Ninth
24
Circuit should be reversed and remanded, with instructions to reconsider the validity of Mr.
Haner’s arrest according to an objective determination of the existence of probable cause,
regardless of the offense stated by the petitioners upon arrest.
Respectfully submitted,
October 8, 2004
25