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Most citizens likely would be surprised to learn that after a court determines that police lacked probable cause to arrest them for a specific offense, they can still be prosecuted for unrelated conduct that could have warranted arrest at the time. On Nov. 8, the U.S. Supreme Court hears arguments in Devenpeck v. Alford on whether the Fourth Amendment permits such post hoc rehabilitations of arrests. In Devenpeck, a state trooper suspected that Jerome Alford was impersonating an officer. He stopped his car and found police-related equipment. Another trooper arriving on the scene noticed that Alford was tape recording the encounter and informed him that he was under arrest for recording a private conversation without consent in violation of the Washington Privacy Act. Alford spent the night in jail, but the charge was eventually dismissed because the conversation was not private within the meaning of the statute. Alford brought a civil rights action for unlawful arrest. The jury found for the defendants, but the 9th U.S. Circuit Court of Appeals reversed, invoking the closely related offense doctrine to reject the defendants’ effort to justify Alford’s arrest on the basis of conduct (impersonating an officer and obstruction) unrelated to his alleged privacy act violation. Court will examine doctrine The closely related offense doctrine, followed in five circuits, yet rejected in at least two others, holds that an arrest without probable cause is valid if probable cause existed to suspect that the arrestee committed another closely related offense. The doctrine is considered a compromise. As the 5th Circuit noted in Vance v. Nunnery (1998), the police should not be forced to cite every arrest basis conceivably justified to help ensure that one will survive probable-cause scrutiny, yet they should not be permitted to “justify what from the outset may have been sham or fraudulent arrests on the basis of ex post facto justifications that turn out to be valid.” The 7th Circuit reasoned in Williams v. Jaglowski (2001) that the doctrine rehabilitates an invalid arrest when the later charge can reasonably be based on the same set of facts that gave rise to the arrest and would have recommended itself to a reasonable police officer acting in good faith at the time of the arrest. It’s a safe bet that the high court will reject the closely related offense doctrine, given its friction with the court’s case law making probable cause the sine qua non of constitutional reasonableness. In City of Lago Vista v. Atwater (2001), for instance, the court held that police can arrest for even “very minor” offenses (in that case, a seat-belt violation) if probable cause exists. Moreover, dictum in other decisions bolsters the argument that post hoc judicial findings of probable cause can justify police action, even when officers thought no probable cause existed at the time. There are, however, sound reasons supporting the doctrine. First, it best comports with the common law. Framing-era authorities sharply limited officers’ power to execute warrantless arrests, requiring proof in court that the crime justifying arrest actually occurred. Second, the doctrine best serves modern societal interests. Implicit in the defendants’ position in Devenpeck is the notion that police should not be expected to know the law when exercising their arrest powers. However, this position plainly undercuts police incentives to self-educate, a major policy benefit of the exclusionary rule. Also, with the anything-goes approach, not only would arrests for very minor violations be permitted, but so would any subsequent justification when an arrest basis later proved invalid. This should raise particular concern given the myriad of arrestable offenses available to modern police, any of which, while perhaps not initially warranting arrest, could be later trumped up to redeem an illegal arrest (and hence the fruits garnered from an incidental search). Such an outcome surely would undermine transparency and trust, just when government should be most concerned about cutting square corners with its citizens-when it is depriving them of their physical liberty. Finally, the approach conflicts with the court’s basic Fourth Amendment teachings. Under Terry v. Ohio (1968), the scope of an investigative stop is limited by the specifically articulated suspicions of criminal activity cited by police. The anything-goes approach requires no such contemporaneous specificity and nexus; thus citizens merely stopped by police will enjoy greater constitutional protection than those actually arrested. Perversely, the approach will permit police to justify arrests using legal bases unknown (or at least undisclosed) upon arrest, despite settled law that prohibits probable cause to be based on facts unknown to police at the time of arrest. Ultimately, Devenpeck will answer whether arrests-despite their enormous personal significance to citizens-are nothing more than ministerial acts, the specific grounds for which are constitutionally irrelevant. One can only hope that the court concludes otherwise. Wayne A. Logan is a professor at William Mitchell College of Law in St. Paul, Minn.

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