John Paul Stevens: We'll hear argument in No. 03-710, Devenpeck against Alford. Ms. Hart.
Maureen A. 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--
Sandra Day 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?
Maureen A. 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--
Sandra Day O'Connor: We're dealing here with a case from the State of Washington, and you assert there is no such requirement in Washington.
Maureen A. Hart: --There is not.
Sandra Day 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?
Maureen A. Hart: That is correct.
Sandra Day O'Connor: And it turns out... do you concede that that was, in fact, not a lawful grounds for arrest?
Maureen A. Hart: That... at this point, the question of the--
Sandra Day O'Connor: Do you concede that--
Maureen A. Hart: --Your Honor--
Sandra Day O'Connor: --that in the State of Washington, that it is perfectly lawful to record the conversation with the police?
Maureen A. Hart: --This... the facts of this particular case have not been before a... a court in Washington, Your Honor.
Sandra Day 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?
Maureen A. 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.
Sandra Day 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?
Maureen A. Hart: No, Your Honor. We have not raised the Privacy Act as an issue before this Court.
Anthony M. Kennedy: Well, for argument--
Sandra Day O'Connor: Now, Washington also has an anti-stacking policy, does it?
Maureen A. Hart: The State Patrol does, Your Honor, yes.
Sandra Day O'Connor: Is... is that just a rule of the patrolmen in the State?
Maureen A. Hart: It--
Sandra Day O'Connor: They won't arrest someone for several charges?
Maureen A. Hart: --It's an agency policy and troopers with the Washington State Patrol are trained to it.
David H. Souter: Well, is it an agency policy that the State endorses, and if so, why... why do you endorse or adopt the policy?
Maureen A. 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--
Antonin Scalia: Not... not stacking charges you mean.
Maureen A. 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.
David H. 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?
Maureen A. 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.
David H. 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?
Maureen A. 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--
David H. 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.
Maureen A. 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.
David H. 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?
Maureen A. 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--
David H. 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.
Maureen A. 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.
Antonin 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. All right? 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?
Maureen A. Hart: If there was probable cause based on the... if there was reason based on the objective facts and circumstances--
Antonin Scalia: And it doesn't matter whether he knew those facts and circumstances.
Maureen A. Hart: --that... known to the officer at arrest.
Antonin Scalia: Oh, so it has to be known.
Maureen A. Hart: Yes.
Antonin Scalia: So in my example, the arrest would be invalid because at the time of the arrest, he didn't know about the sticker.
Maureen A. 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.
Antonin Scalia: So you're saying it's the facts known to the officer--
Maureen A. Hart: Precisely.
Antonin Scalia: --that have to establish the probable--
Ruth Bader Ginsburg: That's--
Antonin 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.
Maureen A. 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--
Ruth Bader Ginsburg: --That was LaFave. You cited LaFave in your brief for that proposition.
Maureen A. Hart: --Yes.
Ruth Bader 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?
Maureen A. 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--
Ruth Bader Ginsburg: Is it... is it at the arraignment or the... at the earlier booking in the police station?
Maureen A. Hart: --I'm sorry. I'm not following your question.
Ruth Bader 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?
Maureen A. 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.
John Paul Stevens: You mean he could be held until a charge is filed without being told why he's being held?
Maureen A. Hart: Justice Stevens--
John Paul Stevens: So that could be a week or 2.
Maureen A. 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--
Antonin Scalia: Would the magistrate keep those grounds secret?
Maureen A. Hart: --They would not be secret, Your Honor, no.
Antonin Scalia: Well, wouldn't the magistrate tell him why he's being held?
Maureen A. Hart: The magistrate would tell the... the arrestee why he's being held, provided the arrestee is present for that particular procedure.
John Paul Stevens: And how soon is he entitled to appear before the magistrate?
Maureen A. Hart: I'm sorry?
John Paul Stevens: How soon after his physical arrest does he have a right to appear before the magistrate?
Maureen A. Hart: My... my recollection under Washington's law would be... 72 hours is the time for the charge.
John Paul Stevens: So for 72 hours, he could be held incommunicado without knowing why he was arrested.
Maureen A. 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.
Ruth Bader 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?
Maureen A. 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.
Ruth Bader 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?
Maureen A. Hart: I do believe there has, Your Honor. It's not a matter of record, however, in the... against arresting for that reason.
Ruth Bader 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?
Maureen A. 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.
Ruth Bader Ginsburg: But he was never... never charged with the impersonating an officer, only with the flashing headlights. Is that right?
Maureen A. Hart: That's correct.
Stephen G. 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.
Maureen A. Hart: Thank you, Your Honor.
John Paul Stevens: Mr. Comey.
James B. 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--
David H. Souter: Do the facts, on your view, have to be known to the officer?
James B. Comey: --Yes, Your Honor.
David H. 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?
James B. Comey: Yes, Your Honor.
David H. 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?
James B. Comey: I suspect, Your Honor, that the Government would urge such a rule if it were at issue in this case.
David H. Souter: But it's not urging it here.
James B. Comey: Well, I don't see it at... at issue in this case, Your Honor.
David H. Souter: I don't think it is. I just want to know where we're going.
James B. 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.
David H. Souter: So far as you know, there... there are no empirical studies looking into this particular horrible?
James B. 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--
Sandra Day O'Connor: Mr. Comey, I think you rely, in part at least, on this Court's case in Whren--
James B. Comey: --Yes, Your Honor.
Sandra Day 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?
James B. 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.
David H. 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?
James B. 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--
David H. 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?
James B. 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.
Ruth Bader 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.
James B. 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?
John Paul 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.
James B. 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.
Ruth Bader 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?
James B. Comey: Yes, Your Honor. The Ninth Circuit.
Ruth Bader Ginsburg: But the... outside the Ninth Circuit.
James B. Comey: Yes, Your Honor. I believe the Seventh Circuit as well and the First Circuit.
Ruth Bader Ginsburg: Do we know whether these horribles have occurred there, that the police are booking for everything?
James B. 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--
Anthony M. Kennedy: In... in the Federal system, is the arrest based on what the officer knew and... and see... and saw at the time?
James B. Comey: --Yes, Your Honor. His perceptions, the... the facts known to the arresting officers.
Anthony M. 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.
James B. 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.
Anthony M. Kennedy: So you would confine the rule to what the officer has seen at the time of the arrest.
James B. Comey: Facts known to the officers, including facts known to officers with whom he or she is working. Thank you, Your Honor.
John Paul Stevens: Thank you, Mr. Comey. Mr. Phillips.
R. Stuart Phillips: 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--
Sandra Day 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.
R. Stuart Phillips: --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.
Sandra Day 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?
R. Stuart Phillips: 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--
Sandra Day O'Connor: Well, could... could an arrest made under the circumstances I described be valid?
R. Stuart Phillips: --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--
Sandra Day 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.
R. Stuart Phillips: --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--
Sandra Day 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?
R. Stuart Phillips: --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--
Anthony M. 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.
R. Stuart Phillips: --I'll be very happy if you--
Anthony M. 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.
R. Stuart Phillips: --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--
Antonin 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.
R. Stuart Phillips: --Your Honor--
Antonin 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.
R. Stuart Phillips: --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.
Ruth Bader 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?
R. Stuart Phillips: The issue of... of the constitutionality of that has never been ruled on by this Court. There are--
Ruth Bader 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?
R. Stuart Phillips: --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--
David H. 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.
R. Stuart Phillips: --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--
David H. 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.
R. Stuart Phillips: --Correct, Your Honor.
David H. 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?
R. Stuart Phillips: 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.
David H. 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?
R. Stuart Phillips: It would certainly make it easier, but it's not necessary.
David H. 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?
R. Stuart Phillips: 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.
David H. Souter: Then what is the... yes, but what's the justification for doing it? What is the practical problem that we are concerned with?
R. Stuart Phillips: The practical problem is that people are being arrested for conduct that is, at its base, not criminal.
Antonin 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. Right? 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?
R. Stuart Phillips: Well, Your Honor--
Antonin 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.
R. Stuart Phillips: --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.
John Paul Stevens: Yes, but did you object to the instructions in the trial court?
R. Stuart Phillips: No, Your Honor, because the--
John Paul 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.
R. Stuart Phillips: --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.
John Paul Stevens: But whose fault is that?
R. Stuart Phillips: 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.
Ruth Bader 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?
R. Stuart Phillips: 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--
Anthony M. Kennedy: Under Washington law, is it lawful for your client to have headlights... wig-wag lights?
R. Stuart Phillips: --No, Your Honor. It is a traffic violation. That is a non-arrestable offense, and that was admitted at court and also here today.
Sandra Day O'Connor: Was your client ever found guilty of any offense at all?
R. Stuart Phillips: No, Your Honor. Even the traffic infraction was dismissed by the judge.
Anthony M. Kennedy: But it's unlawful to have wig-wag lights, and I take it it's an arrestable offense to impersonate a police officer.
R. Stuart Phillips: Yes, Your Honor, but that--
Anthony M. 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.
R. Stuart Phillips: --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.
Antonin 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?
R. Stuart Phillips: 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.
Antonin 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--
R. Stuart Phillips: Correct, Your Honor.
Antonin 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.
R. Stuart Phillips: 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.
John Paul Stevens: May I ask one other question about the proceedings in the trial court?
R. Stuart Phillips: Yes, sir.
John Paul Stevens: Was there a motion for summary judgment by the defendants claiming, as a matter of law, they should be entitled to qualified--
R. Stuart Phillips: Yes, sir.
John Paul Stevens: --And that was overruled.
R. Stuart Phillips: That was denied, yes.
John Paul 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.
R. Stuart Phillips: 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.
John Paul Stevens: What is your understanding of the reason for the jury's verdict on this issue?
R. Stuart Phillips: 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.
John Paul Stevens: May I ask one other question then too?
Antonin Scalia: That's not my reason. I don't even know the man. I'm just-- [Laughter]
John Paul 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?
R. Stuart Phillips: 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. But otherwise--
Ruth Bader 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.
R. Stuart Phillips: --They did describe the entire episode to him, Justice Ginsburg.
Ruth Bader Ginsburg: So why couldn't it be related in time and space rather than legally related?
R. Stuart Phillips: 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.
Stephen G. 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?
R. Stuart Phillips: Well, Your Honor, we're not concerned so much... this doctrine is not concerned so much with what to label the crime.
Stephen G. 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.
R. Stuart Phillips: 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--
Stephen G. 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. [Laughter] And... and that's where I'm sort of stuck.
R. Stuart Phillips: --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. Wrong. Under the Constitution we have reasonableness. Okay. He's arrested. 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.
John Paul 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?
R. Stuart Phillips: In this instance, Your Honor?
John Paul Stevens: Yes.
R. Stuart Phillips: Certainly not.
John Paul 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?
R. Stuart Phillips: No, Your Honor, because we don't feel that there was probable cause for the arrest.
Antonin 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.
R. Stuart Phillips: That in order to address the Ninth Circuit's holding--
Antonin Scalia: Exactly, exactly.
John Paul 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?
R. Stuart Phillips: --If there was probable cause--
John Paul Stevens: No. If there was no probable cause.
R. Stuart Phillips: --Oh, correct. If there was no probable cause for--
John Paul Stevens: Then you win without this fancy doctrine.
R. Stuart Phillips: --That's... that is correct, Your Honor, and that was--
John Paul 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.
R. Stuart Phillips: --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--
John Paul Stevens: No, but if you say the arrest was valid, he did act lawfully although we didn't realize the reason why he did.
R. Stuart Phillips: --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.
David H. 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?
R. Stuart Phillips: Correct. Unreasonable.
David H. 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?
R. Stuart Phillips: Certainly, Your Honor, and there we would--
David H. Souter: So it has nothing to do, essentially, with warrantless or nonwarrantless arrests.
R. Stuart Phillips: --Well, in this case it does, but had there been a warrant--
David H. 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.
R. Stuart Phillips: --That there was no probable cause for the arrest.
David H. Souter: That's... that's right.
R. Stuart Phillips: Correct, Your Honor.
David H. Souter: Yes.
R. Stuart Phillips: 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--
Sandra Day O'Connor: Well, you don't have any case law to cite to us for that. That gets us into a whole new doctrine.
R. Stuart Phillips: --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.
Ruth Bader 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.
R. Stuart Phillips: 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--
John Paul Stevens: Thank you, Mr. Phillips. Ms. Hart, you have 5... 5 minutes.
Maureen A. 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.
John Paul Stevens: Thank you, Ms. Hart. The case is submitted.