Officer Motive and Stated Offense

Officer Motive and Stated Offense

The probable cause test developed so far asks what the facts known to an officer add up to. This section asks whether anything in the officer's mind, or in the officer's announcement at the time of arrest, can change that sum, and the answer is no. The officer's subjective reason for making the arrest and the offense the officer names when making it are both irrelevant to whether probable cause existed. The only mental ingredient that counts is the officer's knowledge of the facts. Devenpeck v. Alford states the rule in just those terms: an arresting officer's state of mind, except for the facts the officer knows, is irrelevant to the existence of probable cause.¹ The law does not ask why the officer acted, only whether the known facts justified acting. The two sub-sections that follow apply that idea to motive and to the named offense, and the reasoning that supports both comes first.

The question in Devenpeck was whether an arrest is lawful under the Fourth Amendment when the offense for which probable cause exists is not “closely related” to the offense the officer stated at the time of arrest.² Some lower courts had answered no, and had required that the offense supplying probable cause be “closely related” to, and based on the same conduct as, the offense the officer identified.³ The Supreme Court rejected that requirement as inconsistent with its precedent, chiefly Whren v. United States, which explained that an officer's action is not invalidated because the officer lacks the state of mind the justifying reasons would suggest, so long as the circumstances, viewed objectively, justify the action.⁴ Whren arose from a traffic stop, which the first sub-section below takes up, and Devenpeck carries the same logic into the law of arrest.

The Court's objection to the related-offense rule is that it makes the lawfulness of an arrest depend on the officer's motivation. It does so by discarding two kinds of information: facts that played no part in the officer's expressed reason for the arrest, and offenses that are not closely related to that reason. An arrest that the known facts fully supported would then fall only because the officer's announced theory pointed somewhere else.⁵ Once the validity of the arrest turns on the officer's theory, the Fourth Amendment is no longer measuring the arrest against what the officer knew, and that is the substitution the objective standard forbids.

The objective standard rests on two separate reasons. The first is uniformity. If an arrest's validity depended on what the officer thought or said, identical facts would produce different constitutional results depending on who made the arrest, so that protection would “vary from place to place and from time to time.”⁶ An arrest by a knowledgeable veteran who correctly named a class of offense would stand, while the same arrest by a rookie in the same circumstances would fall, and the Court saw no reason to give the Fourth Amendment such arbitrarily variable protection.⁷

The second reason is incentive, and it is the subtler one. A rule that tests the arrest against the offense the officer named is meant to discourage sham arrests, in which an officer announces one charge hoping that something else will later justify it. That rule would instead reward silence, because the Constitution has never required an officer to state any reason at the time of arrest, even though doing so is good police practice.⁸ Officers who knew that a stated reason could defeat a later justification would stop stating reasons, and if the law forced them to speak they would recite every offense for which probable cause could conceivably exist.⁹ Neither response reduces sham arrests, because each changes only what officers say.

The officer's mind is not wholly beside the point, because the facts the officer knows survive the rule. A person is lawfully arrested when the facts known to the arresting officers give probable cause to arrest, and nothing outside those facts can substitute for them.¹⁰ That is why an officer's sincere conviction, or a statement that the officer had unspecified information, cannot fill a gap in the record, as the discussion of bare conclusions earlier in this chapter showed. The objective standard removes motive and labels from the analysis and leaves the facts as the whole of it.

Exam stems built on this doctrine usually give the officer a stated charge and a motive and invite the argument that the arrest fails because the charge was wrong or the motive improper. Students lose points when they treat the offense the officer named as the only offense the arrest can rest on. They err in the other direction when they excuse a thin arrest because the officer meant well, since good intentions add no fact to what the officer knew. The rule has critics: one Justice, concurring in Wesby, questioned whether an officer's actual reason should never matter to the Fourth Amendment analysis. That is a recognized criticism of the doctrine and not a rule an examinee may apply, so the answer on an exam remains the objective one.

Pretext Does Not Matter

The preceding discussion established that an officer's state of mind, apart from the facts the officer knows, plays no part in probable cause. This sub-section takes up the first application of that idea, which concerns pretext: an observed, legitimate reason for police action, such as a traffic violation, that differs from the officer's real purpose, such as a search for drugs. In Whren v. United States the Court held that a traffic stop is reasonable whenever officers have probable cause to believe a traffic violation has occurred, regardless of the officers' subjective motives or any pretextual desire to investigate other crimes for which they lack sufficient cause.¹² Because Whren concerned the stop of a car rather than an arrest, its holding is phrased in terms of traffic violations. The principle beneath it, that subjective intent does not undo objectively justified police action, is the one Devenpeck later carried into the law of arrest.¹³

The facts show how wide the gap between stated and real purpose can be. Plainclothes vice-squad officers in an unmarked car were patrolling a high-drug area when they noticed a truck with temporary plates and youthful occupants waiting at a stop sign for more than 20 seconds, the driver looking down into the passenger's lap. When the officers turned around, the truck turned right without signaling and sped off at an unreasonable speed. The officers overtook it at a red light, one of them approached the driver's door, and he immediately saw two large bags of what appeared to be crack cocaine in Whren's hands.¹⁴ The occupants argued at the suppression hearing that the officers had no basis to suspect drug dealing and that the traffic violation was only a pretext for a drug investigation.¹⁵

The occupants' argument took the form of a reasonable-officer test. Even with probable cause of a violation, they said, the stop should fall unless a reasonable officer would have been motivated to make it by a desire to enforce the traffic laws.¹⁶ That test looks objective, since it asks about a hypothetical officer. Yet it brings motive back into the analysis, because a stop that a real officer made for an ulterior purpose would be measured against what an officer with a proper purpose would have done. The Court had already rejected the idea that a seizure becomes unreasonable because the officer lacks the state of mind the justifying reasons would suggest, so long as the circumstances, viewed objectively, justify the action. Reasonableness permits certain actions in certain circumstances, in the Court's words, "whatever the subjective intent."¹⁷

The occupants also urged an interest-balancing approach, and the Court's answer explains why probable cause carries so much weight. They argued that policing minor traffic infractions from unmarked cars advances traffic safety very little and may alarm motorists, so the individual's interest should prevail. The Court agreed that every reasonableness inquiry involves some balancing in principle, but said that with rare exceptions the result is not in doubt when the seizure rests on probable cause. The cases that required detailed balancing (random license checks, checkpoint stops, and roving patrols) all involved seizures made without probable cause, which is the traditional justification for a seizure.¹⁸ The mechanism is that probable cause already supplies the individualized suspicion that keeps police discretion in check. Where it is absent, a court must ask whether some other justification takes its place, and where it is present, the constraint is already in place. Balancing returns for probable-cause seizures only when they are carried out in an extraordinary manner, such as by deadly force, an unannounced home entry, a warrantless home entry, or penetration of the body, and a stop by plainclothes officers in an unmarked car does not remotely qualify.¹⁹

The occupants' strongest practical worry was that traffic codes are so numerous and so hard to obey perfectly that nearly every driver is guilty of something, which would let officers pick whom to stop. The Court identified no principle for deciding when a code becomes so expansive and so commonly violated that infraction can no longer be the ordinary measure of lawful enforcement. It also saw no standard by which a court could decide which provisions are important enough to merit enforcement.²⁰ A court that tried would have to rank traffic laws by importance with no constitutional yardstick for doing so. A motive test would also be hard to administer, since an officer's real intentions are difficult to know, and it would yield different results for identical facts depending on who made the stop.²¹ The motive complaint still has a legal home outside the Fourth Amendment. An allegation that officers chose their targets because of race is not cognizable as a Fourth Amendment pretext claim, but it may support a claim under the Equal Protection Clause.²²

The rule depends on one fact, the existence of objective probable cause at the moment of the stop, and the next scene removes it.

The two scenes, together with Whren itself, suggest a short sequence for any stop stem in which the officer's motive looms large.

Exam stems built on this doctrine usually pair a trivial violation with a revealing motive (an undercover officer, a hunch, a stated wish to look in the trunk) and invite the argument that the stop fails because it was a sham. Students lose points when they treat the officer's real reason for the stop as relevant, since under Whren it is not. They err in the opposite direction when they read the case as excusing any stop an officer chooses to call a traffic stop, because the rule applies only when the observed facts supply objective probable cause of a violation.

Any Probable Offense Suffices

The previous subsection showed that an officer's real purpose cannot undo a stop that objective probable cause supports. A parallel question arises at an arrest, because the officer also chooses a name for the offense, and that name can be wrong. Devenpeck v. Alford holds that an arrest is valid under the Fourth Amendment if, at the time of arrest, the officers had probable cause to arrest the suspect for any offense, even if the offense they actually relied on was unsupported or mistaken.²⁴ The label records the officer's theory of the case, while the Constitution measures the facts beneath it. The reasons the Court gave for that choice appear above, so what remains is to watch the rule operate on the facts that produced it.

Those facts show an arrest resting on a mistaken label while the surrounding circumstances pointed to a different crime. On a November night in 1997, Jerome Alford pulled off a Washington highway behind a stranded car, switched on alternating “wig-wag” headlights, and began helping the motorists with a flat tire. Officer Joi Haner of the State Patrol turned around to check on the scene and found Alford hurrying back to his car and driving away.²⁵ The motorists told Haner that Alford's statements and flashing headlights had given them the impression that he was a police officer, and that he had left his flashlight behind. Haner radioed his supervisor, Sergeant Gerald Devenpeck, that he feared Alford was an “impersonator” or “wannabe cop,” and then pulled Alford over.²⁶ At the car Haner saw a police scanner tuned to the Kitsap County Sheriff's frequency, handcuffs, and a hand-held scanner, and he found Alford's explanations about his past law-enforcement work and the headlights evasive and untruthful.²⁷ Devenpeck then arrived, noticed a tape recorder on the passenger seat with its play and record buttons depressed, played the tape, and arrested Alford for violating the Washington Privacy Act by recording the conversation without consent.²⁸

The charges were later dismissed, and Alford sued the officers under 42 U.S.C. § 1983, but a jury returned a verdict for the officers.²⁹ A divided Ninth Circuit panel reversed. The officers had cited only the Privacy Act charge, and taping officers during a traffic stop was not a crime in Washington, so the panel found no probable cause. It refused to consider impersonating a police officer or obstructing one, because those offenses were not “closely related” to the offense Devenpeck had invoked when he took Alford into custody.³⁰ The Supreme Court asked whether an arrest is lawful when the offense for which probable cause exists is not closely related to the offense the officer stated at the time of arrest, and it answered yes.³¹ Its starting point was that probable cause depends on the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. The Ninth Circuit had confined that inquiry twice over, first to facts bearing on the offense actually invoked and then to offenses closely related to it, and the Court found no basis in precedent or reason for the limitation.³²

Applied to Alford's arrest, the rule changes the question the court must ask. The Privacy Act charge was a theory about what Alford had done, and because taping a traffic stop was no crime in Washington, the theory was wrong. Under the Ninth Circuit's approach that error would have ended the case. Under the Court's rule it does not, because the inquiry turns to the other facts the officers knew and asks whether they gave probable cause for some offense. The flashing headlights, the scanner tuned to a sheriff's frequency, the handcuffs, the motorists' impression that Alford was a cop, and the evasive answers were all known before the arrest, and they are facts that point toward impersonating a police officer or obstructing one. The arrest was upheld because evidence available to the officer at the time supported probable cause for impersonation, whatever charge Devenpeck announced at the roadside.³³ The rule also makes functional sense. An officer who must name a crime on the spot is applying statutes whose reach courts sometimes settle only later, and a rule that voided every mislabeled arrest would make validity depend on the officer's skill at naming crimes even where the officer had every reason to arrest.

The contrast that carries this section is between the facts the officer knows and everything else about the officer's mind. An arresting officer's state of mind is irrelevant to probable cause, except for the facts that the officer knows.³⁴ Devenpeck's reasons for the arrest therefore added nothing to what the officers knew, and his mistake about the Privacy Act subtracted nothing from it. The facts known, taken as a whole, are the entire inquiry. That inquiry also has a clock. In Beck v. Ohio the arrest could not be rescued by the officer's unspecified information, and the same principle bars facts that surface only after the arrest, such as something found in a later search, from supplying probable cause that did not exist when the arrest was made.³⁵

Exam stems built on this doctrine usually give an arrest whose announced charge turns out to be legally wrong and invite the conclusion that the arrest falls with it. The sound first move is to list what the officers knew before the arrest and ask whether those facts support any offense, named or unnamed. Students lose points when they limit the inquiry to the offense the officer announced, and they lose them the other way when they reach for facts that surfaced later, because the rule covers any offense that the facts known at the moment of arrest support. A neighboring doctrine should be kept apart from this one. Heien v. North Carolina holds that a seizure resting on an objectively reasonable mistake of law is not unreasonable under the Fourth Amendment.³⁶ That rule forgives a reasonable misreading of what the law prohibits, whereas the arrest in Devenpeck needed no such forgiveness, because other known facts independently supported a different offense and the officer's mistake never entered the analysis.