Devenpeck v. Alford

PETITIONER: Gerald Devenpeck, et al.
RESPONDENT: Jerome Anthony Alford
LOCATION: Meramec River

DOCKET NO.: 03-710
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 543 US 146 (2004)
GRANTED: Apr 19, 2004
ARGUED: Nov 08, 2004
DECIDED: Dec 13, 2004

Deputy Attorney General Comey - argued the cause for the United States as amicus curiae urging reversal
James B. Comey - argued the cause for Petitioners, on behalf of the United States, as amicus curiae
Jonathan Hacker - for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance
Maureen A. Hart - argued the cause for Petitioners
Pamela Harris - for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance
R. Stuart Phillips - argued the cause and filed a brief for respondent
Randolph Stuart Phillips - argued the cause for Respondent
Senior Assistant Attorney General - for petitioners

Facts of the case

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?

Media for Devenpeck v. Alford

Audio Transcription for Oral Argument - November 08, 2004 in Devenpeck v. Alford

Audio Transcription for Opinion Announcement - December 13, 2004 in Devenpeck v. Alford

Antonin Scalia:

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.