United States v. 2006-04-25 | 01-35141 | ALFORD VHANER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JEROME ANTHONY ALFORD, No. 01-35141
Plaintiff-Appellant, D.C. No.
v. CV-99-05586-RJB
JOI HANER, a Washington State ORDER
Patrol Officer; JANE DOE HANER, GRANTING
his wife; GERALD DEVENPECK, Sgt., PETITION FOR 
Washington State Patrol; JANE DOE REHEARING,
DEVENPECK, his wife, DENYING
Defendants-Appellees. PETITION FOR
REHEARING EN
BANC, AND
AFFIRMING

Filed April 26, 2006
Before: James R. Browning, Betty B. Fletcher, and
Ronald M. Gould, Circuit Judges.
Order;
Dissent by Judge B. Fletcher
ORDER
Judges Browning and Gould voted to grant the petition for
rehearing; Judge B. Fletcher voted to deny it. The petition for
rehearing en banc was circulated to the full court. No judge
has requested a vote on rehearing en banc. The petition for
rehearing is GRANTED and the petition for rehearing en banc
is DENIED. The Order filed on August 9, 2005, appearing at
418 F.3d 1004, is withdrawn.
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This case returns to us on remand from the Supreme Court.
Devenpeck v. Alford, 543 U.S. 146 (2004), reversing Alford
v. Haner, 333 F.3d 972 (9th Cir. 2003). We must now address
whether or not Defendants had probable cause to arrest Alford
for the offenses of obstructing a law enforcement officer or
impersonating a law enforcement officer. See id. at 156.
Alford argues we should remand because there are disputed
material facts as to the existence of probable cause and the
possibility of qualified immunity. We disagree.
We review a denial of a motion for new trial for abuse of
discretion, and we can reverse such a denial only if the district
court makes a legal error in applying the standard for a new
trial or the record contains no evidence that can support the
verdict. Graves v. City of Coeur d’Alene, 339 F.3d 828, 839
(9th Cir. 2003); Landes Constr. Co. v. Royal Bank of Canada,
833 F.2d 1365, 1372 (9th Cir. 1987). In our original decision,
we reversed because we determined that the record contained
no evidence to support the jury’s verdict in Defendants’ favor.
We held that a reasonable jury could not have concluded Offi-
cer Haner had probable cause to arrest or was entitled to qual-
ified immunity because the actions for which Alford was
arrested and charged were in fact lawful. Alford, 333 F.3d at
979. Critical to our analysis was our understanding, following
the since-rejected “closely related offense” rule, that “proba-
ble cause to arrest for other unrelated offenses, if present,
does not cure the lack of probable cause here.” Id. at 976-77.
As Alford has never argued that the district court made legal
error in applying the standard for a new trial, we must now
affirm if there is any evidence in the record which supports
the jury’s verdict.
After careful review, the majority finds that there is suffi-
cient evidence in the record to support a finding of objective
probable cause to arrest Alford for the misdemeanor offense
of criminal impersonation in the second degree. See Wash.
Rev. Code § 9A.60.040(3) (West 1996).1 Specifically, the jury
1In relevant part § 9A.60.040(3) states:
A person is guilty of criminal impersonation in the second
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heard testimony that, at the time he arrested Alford, Officer
Haner had been told by the motorists Alford aided that they
thought he was a police officer and he had been using wig-
wag headlights when he pulled in behind them.2 Additionally,
Haner himself observed a police-style radio, a portable radio
scanner, and handcuffs in Alford’s car prior to the arrest. We
conclude that those facts and circumstances are sufficient to
warrant a reasonable officer in Haner’s position to believe
that Alford had impersonated a law enforcement officer. See
id.; Maryland v. Pringle, 540 U.S. 366, 371 (2003); Brinegar
v. United States, 338 U.S. 160, 175-76 (1949) (“Probable
cause exists where the facts and circumstances within . . . [the
officers’] knowledge and of which they had reasonably trust-
worthy information [are] sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has
been or is being committed.” (citation and internal quotation
marks omitted)).
Given the unique circumstances of this case, we briefly
degree if the person:
(a) Claims to be a law enforcement officer or creates an impres-
sion that he or she is a law enforcement officer; and
(b) Under circumstances not amounting to criminal imperson-
ation in the first degree, does an act with intent to convey the
impression that he or she is acting in an official capacity and a
reasonable person would believe the person is a law enforcement
officer.
2Alford has argued that there could not have been probable cause for
this offense because his alleged use of wig-wag lights and original interac-
tion with the motorists did not occur in Officer Haner’s presence. It may
be that Alford’s arrest violated Washington law in this regard. See Wash.
Rev. Code § 10.31.100 (West 1996) (authorizing warrantless misdemea-
nor arrest only when the offense is committed in the presence of the offi-
cer or is a listed offense). However, in the absence of direction from the
Supreme Court, we have held that the common law “in the presence”
requirement is not a constitutional one. See Barry v. Fowler, 902 F.2d 770,
772 (9th Cir. 1990).
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address the adequacy of the jury instructions. Although we
would expect a court normally to give instruction on all sup-
porting offenses when charging a civil jury with determining
probable cause, that did not happen in this case. The jury was
instructed on Washington’s Privacy Act but not on
§ 9A.60.040 impersonation. We need not decide whether the
lack of that instruction was erroneous because any error in its
omission, in this case, was harmless.
Most importantly, the jury was properly instructed, without
objection, on probable cause. The language of that instruction
alone is sufficient to support their verdict.3 Moreover, in addi-
tion to the supporting evidence noted above, the jury heard
unrebutted testimony from a defense witness that there was
sufficient probable cause to arrest Alford.4 We conclude that,
weighing all the evidence before them, a reasonable jury
could have followed the probable cause instruction given
them and concluded that, even if Alford did not violate Wash-
ington’s Privacy Act as a matter of law (as their other instruc-
tions made clear), there was, nonetheless, objective probable
cause for Haner to arrest him.
The denial of Alford’s motion for a new trial is
AFFIRMED.
3See Jury Instruction 12 (“An arrest made without probable cause is
unreasonable. Probable cause to arrest is determined by viewing the total-
ity of the circumstances known to the arresting officer at the time of the
arrest. The standard is met if the facts and circumstances within the arrest-
ing officer’s knowledge are sufficient to warrant a prudent person to con-
clude that the suspect has committed, is committing, or was about to
commit a crime.”).
4The jury heard testimony from an assistant district attorney with whom
Sergeant Devenpeck spoke by telephone shortly after Alford’s arrest. At
trial he testified that, after Devenpeck had related to him the events sur-
rounding Alford’s stop and arrest, he “advised Sergeant Devenpeck there
was clearly probable cause,” based on the totality of the circumstances and
after discussing possible charges of violating the Privacy Act, impersonat-
ing an officer, and false representation to an officer.
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B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
Our prior order remanding to the district court because the
issue of probable cause for impersonating an officer was not
before the jury, was correct. Any evidence of other conduct
by Alford was presented only in the context of whether he had
the requisite intent under the Privacy Act. The instructions to
the jury were in the context of violation of the Privacy Act.
The jury was not asked to consider other possible crimes for
which Alford could have been arrested.
The arguments of both counsel focused on the Privacy Act
and witness-credibility. Neither suggested that the jury was to
decide whether there was probable cause to arrest for imper-
sonating a police officer. Granting the government’s Petition
for Rehearing and affirming the acquittal is inconsistent with
the testimony, the jury instructions, and counsels’ arguments
all of which indicate that the jury was not presented with the
theory that the officers may have probable cause to arrest for
an offense other than Privacy Act violations. The remand to
the district court, leaving those proceedings open on the issue
of qualified immunity, is appropriate. We should deny the
government’s Petition for Rehearing.
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