DEVENPECK et al. v. ALFORD

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Syllabus
DEVENPECK et al. v. ALFORD
certiorari to the united states court of appeals for
the ninth circuit
No. 03–710. Argued November 8, 2004—Decided December 13, 2004
Believing that respondent was impersonating a police officer, petitioner
Haner, a Washington State Patrol officer, pursued and pulled over re-
spondent’s vehicle. While questioning respondent at the scene, peti-
tioner Devenpeck, Haner’s supervisor, discovered that respondent was
taping their conversation and arrested him for violating the State’s Pri-
vacy Act. The state trial court subsequently dismissed the charge.
Respondent then filed this suit in federal court, claiming, among other
things, that his arrest violated the Fourth and Fourteenth Amendments.
The District Court denied petitioners qualified immunity, and the case
went to trial. The jury was instructed, inter alia, that respondent had
to establish lack of probable cause to arrest, and that taping police at a
traffic stop was not a crime in Washington. The jury found for petition-
ers. The Ninth Circuit reversed, based in part on its conclusion that
petitioners could not have had probable cause to arrest. It rejected
petitioners’ claim that there was probable cause to arrest for imperson-
ating and for obstructing a law enforcement officer, because those of-
fenses were not “closely related” to the offense invoked by Devenpeck
at the time of arrest.
Held:
1. A warrantless arrest by a law officer is reasonable under the
Fourth Amendment if, given the facts known to the officer, there is
probable cause to believe that a crime has been or is being committed.
The Ninth Circuit’s additional limitation—that the offense establishing
probable cause must be “closely related” to, and based on the same con-
duct as, the offense the arresting officer identifies at the time of arrest—
is inconsistent with this Court’s precedent, which holds that an arresting
officer’s state of mind (except for facts that he knows) is irrelevant to
probable cause, see Whren v. United States, 517 U. S. 806, 812–815.
The “closely related offense” rule is also condemned by its perverse
consequences: It will not eliminate sham arrests but will cause officers
to cease providing reasons for arrest, or to cite every class of offense
for which probable cause could conceivably exist. Pp. 152–156.

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Syllabus
2. This Court will not decide in the first instance whether petitioners
lacked probable cause to arrest respondent for either obstructing or
impersonating an officer because the Ninth Circuit, having found those
offenses legally irrelevant, did not decide that question. P. 156.
333 F. 3d 972, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which all other Mem-
bers joined, except Rehnquist, C. J., who took no part in the decision of
the case.
Maureen A. Hart, Senior Assistant Attorney General of
Washington, argued the cause for petitioners. With her on
the briefs were Christine O. Gregoire, Attorney General,
Robert K. Costello, Deputy Attorney General, William Berg-
gren Collins, Senior Assistant Attorney General, Michael P.
Lynch, and Eric A. Mentzer, Assistant Attorney General.
Deputy Attorney General Comey argued the cause for the
United States as amicus curiae urging reversal. On the
brief were Acting Solicitor General Clement, former Solici-
tor General Olson, Assistant Attorneys General Keisler and
Wray, Deputy Solicitor General Dreeben, John P. Elwood,
Joel M. Gershowitz, and Richard A. Olderman.
R. Stuart Phillips argued the cause and filed a brief for
respondent.*
*Briefs of amici curiae urging reversal were filed for the State of Cali-
fornia et al. by Bill Lockyer, Attorney General of California, Manuel M.
Medeiros, State Solicitor, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Senior Assistant Attorney General, Janet E.
Neeley, Supervising Deputy Attorney General, and Lee E. Seale and Pat-
rick J. Whalen, Deputy Attorneys General, by Anabelle Rodrı´guez, Secre-
tary of Justice of Puerto Rico, and by the Attorneys General for their
respective States as follows: Troy King of Alabama, M. Jane Brady of
Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve
Carter of Indiana, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran,
Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of
Michigan, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of
Oklahoma, Hardy Myers of Oregon, Gerald J. Pappert of Pennsylvania,
Henry McMaster of South Carolina, and Mark L. Shurtleff of Utah; for
the Center for the Community Interest by Miguel A. Estrada and Thomas

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148 DEVENPECK v. ALFORD
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
This case presents the question whether an arrest is lawful
under the Fourth Amendment when the criminal offense for
which there is probable cause to arrest is not “closely re-
lated” to the offense stated by the arresting officer at the
time of arrest.
I
A
On the night of November 22, 1997, a disabled automobile
and its passengers were stranded on the shoulder of State
Route 16, a divided highway, in Pierce County, Washington.
Alford v. Haner, 333 F. 3d 972, 974 (CA9 2003); App. 94, 98.
Respondent Jerome Alford pulled his car off the road behind
the disabled vehicle, activating his “wig-wag” headlights
(which flash the left and right lights alternately). As he
pulled off the road, Officer Joi Haner of the Washington State
Patrol, one of the two petitioners here, passed the disabled
car from the opposite direction. 333 F. 3d, at 974. He
turned around to check on the motorists at the first opportu-
nity, and when he arrived, respondent, who had begun help-
ing the motorists change a flat tire, hurried back to his
car and drove away. Ibid. The stranded motorists asked
Haner if respondent was a “cop”; they said that respondent’s
statements, and his flashing, wig-wag headlights, had given
them that impression. Ibid.; App. 96. They also informed
Haner that as respondent hurried off he left his flashlight
behind. Id., at 97.
On the basis of this information, Haner radioed his super-
visor, Sergeant Gerald Devenpeck, the other petitioner here,
that he was concerned respondent was an “impersonator”
H. Dupree, Jr.; and for the National League of Cities et al. by Richard
Ruda and Andrew J. Pincus.
Jonathan D. Hacker and Pamela Harris filed a brief for the National
Association of Criminal Defense Lawyers as amicus cur iae urging
affirmance.

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or “wannabe cop.” Id., at 97–98. He pursued respondent’s
vehicle and pulled it over. 333 F. 3d, at 975. Through the
passenger-side window, Haner observed that respondent was
listening to the Kitsap County Sheriff ’s Office police fre-
quency on a special radio, and that handcuffs and a hand-held
police scanner were in the car. Ibid. These facts bolstered
Haner’s suspicion that respondent was impersonating a po-
lice officer. App. 106, 107. Haner thought, moreover, that
respondent seemed untruthful and evasive: He told Haner
that he had worked previously for the “State Patrol,” but
under further questioning, claimed instead to have worked
in law enforcement in Texas and at a shipyard. Ibid. He
claimed that his flashing headlights were part of a recently
installed car-alarm system, and acted as though he was un-
able to trigger the system; but during these feigned efforts
Haner noticed that respondent avoided pushing a button
near his knee, which Haner suspected (correctly) to be the
switch for the lights. 333 F. 3d, at 975; App. 108.
Sergeant Devenpeck arrived on the scene a short time
later. After Haner informed Devenpeck of the basis for his
belief that respondent had been impersonating a police offi-
cer, id., at 110, Devenpeck approached respondent’s vehicle
and inquired about the wig-wag headlights, 333 F. 3d, at 975.
As before, respondent said that the headlights were part of
his alarm system and that he did not know how to activate
them. App. 52, 138–139. Like Haner, Devenpeck was
skeptical of respondent’s answers. In the course of his ques-
tioning, Devenpeck noticed a tape recorder on the passenger
seat of respondent’s car, with the play and record buttons
depressed. 333 F. 3d, at 975. He ordered Haner to remove
respondent from the car, played the recorded tape, and found
that respondent had been recording his conversations with
the officers. Devenpeck informed respondent that he was
under arrest for a violation of the Washington Privacy Act,
Wash. Rev. Code § 9.73.030 (1994). 333 F. 3d, at 975; App.
144–145. Respondent protested that a State Court-of-

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Appeals decision, a copy of which he claimed was in his glove
compartment, permitted him to record roadside conversa-
tions with police officers. 333 F. 3d, at 975; App. 42, 67–68.
Devenpeck returned to his car, reviewed the language of the
Privacy Act, and attempted unsuccessfully to reach a prose-
cutor to confirm that the arrest was lawful. Id., at 151–154.
Believing that the text of the Privacy Act confirmed that
respondent’s recording was unlawful,1 he directed Officer
Haner to take respondent to jail. Id., at 154.
A short time later, Devenpeck reached by phone Mark
Lindquist, a deputy county prosecutor, to whom he re-
counted the events leading to respondent’s arrest. 333
F. 3d, at 975. The two discussed a series of possible criminal
offenses, including violation of the Privacy Act, impersonat-
ing a police officer, and making a false representation to an
officer. App. 177–178. Lindquist advised that there was
“clearly probable cause,” id., at 179, and suggested that re-
spondent also be charged with “obstructing a public servant”
“based on the runaround [he] gave [Devenpeck],” id., at 157.
Devenpeck rejected this suggestion, explaining that the
State Patrol does not, as a matter of policy, “stack charges”
against an arrestee. Id., at 157–158.
At booking, Haner charged respondent with violating the
State Privacy Act, id., at 32–33, and issued a ticket to re-
spondent for his flashing headlights under Wash. Rev. Code
§ 46.37.280(3) (1994), App. 24–25. Under state law, respond-
ent could be detained on the latter offense only for the
period of time “reasonably necessary” to issue a citation.
1 The relevant provision of the Washington Privacy Act states:
“Except as otherwise provided in this chapter, it shall be unlawful for
any individual, partnership, corporation, association, or the state of Wash-
ington, its agencies, and political subdivisions to intercept, or record
any . . . [p]rivate conversation, by any device electronic or otherwise de-
signed to record or transmit such conversation regardless how the device
is powered or actuated without first obtaining the consent of all the per-
sons engaged in the conversation.” Wash. Rev. Code § 9.73.030(1)(b)
(1994).

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§ 46.64.015. The state trial court subsequently dismissed
both charges. App. 10, 29.
B
Respondent filed suit against petitioners in Federal Dis-
trict Court. He asserted a federal cause of action under
Rev. Stat. § 1979, 42 U. S. C. § 1983, and a state cause of ac-
tion for unlawful arrest and imprisonment, both claims rest-
ing upon the allegation that petitioners arrested him without
probable cause in violation of the Fourth and Fourteenth
Amendments. 333 F. 3d, at 975. The District Court denied
petitioners’ motion for summary judgment on grounds of
qualified immunity, and the case proceeded to trial. Alford
v. Washington State Police, Case No. C99–5586RJB (WD
Wash., Nov. 30, 2000), App. to Pet. for Cert. 40a. The jury
was instructed that, for respondent to prevail on either his
federal- or state-law claim, he must demonstrate that peti-
tioners arrested him without probable cause, App. 199–201;
and that probable cause exists “if the facts and circumstances
within the arresting officer’s knowledge are sufficient to war-
rant a prudent person to conclude that the suspect has com-
mitted, is committing, or was about to commit a crime,” id.,
at 201. The jury was also instructed that, at the time of
respondent’s arrest, a State Court-of-Appeals decision, State
v. Flora, 68 Wash. App. 802, 845 P. 2d 1355 (1992), had clearly
established that respondent’s taping of petitioners was not a
crime, App. 202. And the jury was directed that it must
find for petitioners if a reasonable officer in the same circum-
stances would have believed respondent’s detention was law-
ful. Id., at 200. Respondent did not object to any of these
instructions. The jury returned a unanimous verdict in
favor of petitioners. 333 F. 3d, at 975. The District Court
denied respondent’s motion for judgment as a matter of law
or, in the alternative, a new trial, and respondent appealed.
Ibid.; App. to Pet. for Cert. 25a.

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A divided panel of the Court of Appeals for the Ninth Cir-
cuit reversed, finding “no evidence to support the jury’s ver-
dict,” 333 F. 3d, at 975. The majority concluded that peti-
tioners could not have had probable cause to arrest because
they cited only the Privacy Act charge and “[t]ape recording
officers conducting a traffic stop is not a crime in Washing-
ton.” Id., at 976. The majority rejected petitioners’ claim
that probable cause existed to arrest respondent for the of-
fenses of impersonating a law-enforcement officer, Wash.
Rev. Code § 9A.60.040(3) (1994), and obstructing a law-
enforcement officer, § 9A.76.020, because, it said, those of-
fenses were not “closely related” to the offense invoked by
Devenpeck as he took respondent into custody, 333 F. 3d, at
976–977. The majority also held that there was no evidence
to support petitioners’ claim of qualified immunity, since,
given the Washington Court of Appeals’ decision in Flora,
“no objectively reasonable officer could have concluded that
arresting [respondent] for taping the traffic stop was permis-
sible,” 333 F. 3d, at 979. Judge Gould dissented on the
ground that it was objectively reasonable for petitioners to
believe that respondent had violated the Privacy Act. See
id., at 980. We granted certiorari. 541 U. S. 987 (2004).
II
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” In conformity
with the rule at common law, a warrantless arrest by a law
officer is reasonable under the Fourth Amendment where
there is probable cause to believe that a criminal offense has
been or is being committed. See United States v. Watson,
423 U. S. 411, 417–424 (1976); Brinegar v. United States, 338
U. S. 160, 175–176 (1949). Whether probable cause exists
depends upon the reasonable conclusion to be drawn from
the facts known to the arresting officer at the time of the
arrest. Maryland v. Pringle, 540 U. S. 366, 371 (2003). In

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this case, the Court of Appeals held that the probable-cause
inquiry is further confined to the known facts bearing upon
the offense actually invoked at the time of arrest, and that
(in addition) the offense supported by these known facts
must be “closely related” to the offense that the officer in-
voked. 333 F. 3d, at 976. We find no basis in precedent or
reason for this limitation.
Our cases make clear that an arresting officer’s state of
mind (except for the facts that he knows) is irrelevant to the
existence of probable cause. See Whren v. United States,
517 U. S. 806, 812–813 (1996) (reviewing cases); Arkansas v.
Sullivan, 532 U. S. 769 (2001) (per curiam). That is to say,
his subjective reason for making the arrest need not be the
criminal offense as to which the known facts provide proba-
ble cause. As we have repeatedly explained, “ ‘the fact that
the officer does not have the state of mind which is hypothe-
cated by the reasons which provide the legal justification for
the officer’s action does not invalidate the action taken as
long as the circumstances, viewed objectively, justify that
action.’ ” Whren, supra, at 813 (quoting Scott v. United
States, 436 U. S. 128, 138 (1978)). “[T]he Fourth Amend-
ment’s concern with ‘reasonableness’ allows certain actions
to be taken in certain circumstances, whatever the subjective
intent.” Whren, supra, at 814. “[E]venhanded law en-
forcement is best achieved by the application of objective
standards of conduct, rather than standards that depend
upon the subjective state of mind of the officer.” Horton v.
California, 496 U. S. 128, 138 (1990).
The rule that the offense establishing probable cause must
be “closely related” to, and based on the same conduct as,
the offense identified by the arresting officer at the time of
arrest is inconsistent with this precedent.2 Such a rule
2 At least one Court of Appeals has adopted a variation of the “closely
related offense” rule which looks not to the offense stated by the officer
at the time of arrest, but to the offense given by the officer at booking.
See Gassner v. Garland, 864 F. 2d 394, 398 (CA5 1989); but see Sheehy v.

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makes the lawfulness of an arrest turn upon the motivation
of the arresting officer—eliminating, as validating probable
cause, facts that played no part in the officer’s expressed
subjective reason for making the arrest, and offenses that
are not “closely related” to that subjective reason. See, e. g.,
Sheehy v. Plymouth, 191 F. 3d 15, 20 (CA1 1999); Trejo v.
Perez, 693 F. 2d 482, 485–486 (CA5 1982). This means that
the constitutionality of an arrest under a given set of known
facts will “vary from place to place and from time to time,”
Whren, supra, at 815, depending on whether the arresting
officer states the reason for the detention and, if so, whether
he correctly identifies a general class of offense for which
probable cause exists. An arrest made by a knowledgeable,
veteran officer would be valid, whereas an arrest made by a
rookie in precisely the same circumstances would not. We
see no reason to ascribe to the Fourth Amendment such arbi-
trarily variable protection.
Those who support the “closely related offense” rule say
that, although it is aimed at rooting out the subjective vice
of arrests made for the wrong reason, it does so by objective
means—that is, by reference to the arresting officer’s state-
ment of his reason. The same argument was made in
Whren, supra, in defense of the proposed rule that a traffic
stop can be declared invalid for malicious motivation when it
is justified only by an offense which standard police practice
does not make the basis for a stop. That rule, it was said,
“attempt[s] to root out subjective vices through objective
means,” id., at 814. We rejected the argument there, and
we reject it again here. Subjective intent of the arresting
officer, however it is determined (and of course subjective
intent is always determined by objective means), is simply
Plymouth, 191 F. 3d 15, 20 (CA1 1999) (holding that an arrest cannot be
justified by an offense given at booking when the offense asserted by the
officer at the time of arrest was not closely related). Most of our discus-
sion in this opinion, and our conclusion of invalidity, applies to this varia-
tion as well.

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no basis for invalidating an arrest. Those are lawfully ar-
rested whom the facts known to the arresting officers give
probable cause to arrest.
Finally, the “closely related offense” rule is 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.3 Hence, the predictable conse-
quence of a rule limiting the probable-cause inquiry to of-
fenses closely related to (and supported by the same facts as)
those identified by the arresting officer is not, as respondent
contends, that officers will cease making sham arrests on the
hope that such arrests will later be validated, but rather that
officers will cease providing reasons for arrest. And even if
this option were to be foreclosed by adoption of a statutory
or constitutional requirement, officers would simply give
every reason for which probable cause could conceivably
exist.
The facts of this case exemplify the arbitrary conse-
quences of a “closely related offense” rule. Officer Haner’s
initial stop of respondent was motivated entirely by the sus-
picion that he was impersonating a police officer. App. 106.
Before pulling respondent over, Haner indicated by radio
that this was his concern; during the stop, Haner asked re-
spondent whether he was actively employed in law enforce-
ment and why his car had wig-wag headlights; and when
Sergeant Devenpeck arrived, Haner told him why he thought
respondent was a “wannabe cop,” id., at 98. In addition, in
the course of interrogating respondent, both officers became
convinced that he was not answering their questions truth-
fully and, with respect to the wig-wag headlights, that he
3 Even absent a requirement that an individual be informed of the reason
for arrest when he is taken into custody, he will not be left to wonder for
long. “[P]ersons arrested without a warrant must promptly be brought
before a neutral magistrate for a judicial determination of probable cause.”
County of Riverside v. McLaughlin, 500 U. S. 44, 53 (1991).

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was affirmatively trying to mislead them. Only after these
suspicions had developed did Devenpeck discover the taping,
place respondent under arrest, and offer the Privacy Act as
the reason. Because of the “closely related offense” rule,
Devenpeck’s actions render irrelevant both Haner’s devel-
oped suspicions that respondent was impersonating a po-
lice officer and the officers’ shared belief that respondent
obstructed their investigation. The outcome under the
“closely related offense” rule might well have been different
if Haner, rather than Devenpeck, had made the arrest, on the
stated basis of his suspicions; if Devenpeck had not abided
the county’s policy against stacking charges; or if either
officer had made the arrest without stating the grounds.
We have consistently rejected a conception of the Fourth
Amendment that would produce such haphazard results.
See Whren, 517 U. S., at 815.
* * *
Respondent contended below that petitioners lacked prob-
able cause to arrest him for obstructing a law-enforcement
officer or for impersonating a law-enforcement officer. Be-
cause the Court of Appeals held that those offenses were
legally irrelevant, it did not decide the question. We decline
to engage in this inquiry for the first time here. Accord-
ingly, we reverse the judgment of the Ninth Circuit and re-
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
The Chief Justice took no part in the decision of this
case.