13 December 2004

Devenpeck - Just Plain Bad Reasoning

You know, I'm not a member of the Cult of Scalia but I'm usually impressed by his opinions when I read them. Not this time.

Devenpeck v. Alford is a badly reasoned expansion of Whren's doctrine that courts will look the other way in clear violations of the constitutional guarantee against searches and seizures as long as an officer has reasonable articulable suspicion that there has been some vanishingly minor infringement upon some law.

The 9th Circuit tried to hold the officers in a case to their stated reason for arresting someone:
In 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 invoked.
Altogether, a quite logical position. However, it endangers Whren because it could mean that an officer making a stop because the air freshener dangling from the rearview mirror would be held to the parameters of the reason given for the stop. This would completely void the reason for allowing Whren stops because it could keep the officer from expanding the parameters into zones which would otherwise be unconstitutional without cover from Whren. OMG!!!

Cleaving hard to this mighty cornerstone of constitutional interpretation
[the] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause
the Court goes on to explain:
[The Circuit Court's] rule 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.
Because, as we all know, it would be terrible for police to arrest people on the basis of crimes the officers actually claim have been committed.

The parade of horribles is actually kind of humorous. (1) Under the Circuit Court's standard the constitutionality of each arrest will be based upon the facts of that case. (2) We must rescue rookie officers from the humongous errors they will make in charging suspects (gotta be humongous errors because minor errors would be under the "closely related" part of the standard). (3) Officers will stop telling people what they are being arrested for. (4) Officers will start telling people they are being arrested for everything under the sun. I'm not even going to comment about how silly most of that is.

The new words which are carved in stone and descend from the mount are:
Subjective intent of the arresting officer, however it is determined, is simply no basis for invalidating an arrest.
So now we've moved beyond the Whren doctrine that a ridiculously minor infraction can be used to stop a car in order to shake down its occupants. Now we have a doctrine which states that even if the officer arrests someone on murder and rape charges, for which he doesn't even have reasonable articulable suspicion, the arrest is fine as long as a tail light was out on the car.

Hmmm . . . There's a statement which needs explaining. Am I actually saying that if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep (to remind me when to change oil) and could get a citation for "obstruction of view." Yes, I am.

First, here's the statute I would be violating (in pertinent part):
§ 46.2-1052 (A) Except as otherwise provided in this article or permitted by federal law, it shall be unlawful for any person to operate any motor vehicle on a highway with any sign, poster, colored or tinted film, sun-shading material, or other colored material on the windshield, front or rear side windows, or rear windows of such motor vehicle.
Ah! You say: that's merely a citation!

Nope. In Virginia we don't have a separate classification for "citations." "'Citation' means any summons, ticket, or other official document issued by a police officer for a traffic violation containing an order which requires the motorist to respond." (§ 46.2-944) The default punishment is a class 4 misdemeanor carrying no jail and a maximum $250 fine. (§ 46.2-113).

Well, if it carries no jail time surely I can't get arrested for it? Of course I can. In fact, the statute telling officers how to deal with my violation seems to refer to me as being under arrest.
§ 46.2-936: Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall, except as otherwise provided in § 46.2-940, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Such time shall be at least five days after such arrest unless the person arrested demands an earlier hearing.
But even if my reading of that statute is a little strained, worry not, having committed a misdemeanor in front of the officer (driving with the inability to see around that massive sticker) I am subject to arrest:
§ 19.2-81: [O]fficers may arrest, without a warrant, any person who commits any crime in the presence of the officer.
And going even further, let's assume that my analysis of that section is incorrect - that "crime" is interpreted in a restrictive manner limited to such offenses as existed at common law (not a realistic way to expect it to be interpreted).

Well, then the courts can always fall back on good, old Atwater. Under Atwater it isn't unconstitutional for me to be arrested for a very minor violation which carries no jail sentence. Without that constitutional burden I have no protection against violations of the law. There are no protections for citizens under the Virginia constitution. To say that in a more technically accurate manner:
Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution.
21 Va.App. 729
And you can bet that if the constitution of Virginia goes absolutely not one jot further than what is forced upon our courts by the federal constitution nothing so minor as a law would get in the way. My rights end at the edge of the federal constitution; Atwater renders the statutory arrest limitations dead letter law.

So, you see, if an officer pulled me over and charged me with 12 charges of manslaughter, 8 murders, and jaywalking that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep.


carpundit said...

Ken, I have not read the decision (though it's now on my list), but I'm left with a question:

This was your hypo:
"[IF] an officer pulled me over and charged me with . . . 8 murders. . .that it would be a legitimate arrest because I have a 1X1" sticker on the front window of my Jeep."

I assume you mean that the police have no probable cause for the murder charge, but arrest you just because they think you look like a murderer or something. You would have been subject to arrest for the windshield sticker anyway, so the arrest is no greater 4th Amend. intrusion than you were already legitimately subject to. I don't see the harm in that hypothetical.

Are you saying that the case gives police a free pass to arrest people randomly and figure out what they've done later? If that's the core of your opposition, I express tentative agreement, subject to change upon, you know, actually reading the case.

Ken Lammers said...

Sadly, that is the state of the law. At least it is if you drive a car. I guarantee that every time you drive down the street you violate some statute. Officers pull people over all the time based on stops so bogus that we all see right through them but no judge will call them on it because of Whren.

Now, if the officer thinks I look like a stone killer he can arrest me, tell me that's the reason he arrested me (every arrestee in Virginia is taken before a magistrate to be served with copies of his warrant), and later - after it turns out that he is absolutely wrong - no consequences attach because I had a sticker where it wasn't supposed to be on my car.

Ken Lammers said...

BTW - I don't believe that, short of it being used as an excuse, I would be arrested for this offense. So I am subject to a violation of my 4th Amendment rights. It's just that it is now okay for the officer to do so.

Mister DA said...

Interesting. What you are really saying is that the statutory criminal law in Virgina is INSANE. There, I said it. If you'd like a list of reletively sane states, I'm sure we can provide you with some canidates.[-) Kentucky, where you apparently can't obtain a misdemeanor warrant on mere probable cause might be a likely place. And you've got significant ties to the State, too!

My blue state bastion of run-amuck liberlisim decriminalized almsot all malum prohibitum traffic offenses so long ago hardly anyone still practicing remembers doing trials on speeding or failure to yield, or the like. Makes the arraignment court APA's jobs so much easier.

Ken Lammers said...

Yeah, but if I leave the Old Dominion and go back to My Old Kentucky Home I have to retake the bar since the two Commonwealths won't allow each other's Bar members to waive in. Not on my top ten list of things to do.