How can the police cite you for something that you had no appearance of doing? The Supreme Court of the United States (SCOTUS) continues to evaluate the basis for questioning and arrests by police officers. One thing we know for certain, is that probable cause must be present to make an arrest. SCOTUS states that “an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause.” This statement, now over twenty-years old, is becoming increasingly difficult to apply to present day issues. This difficulty has not gone unnoticed either as evidenced by Justice Ginsburg’s concurring opinion in District of Columbia v. Wesby.
In Wesby, the DC police received a complaint of a loud party with illegal activity occurring in a duplex. Upon arriving at the scene, officers questioned some of the party goers after noticing what they believed to be some illegal activity. After speaking with who the party-goers believed to be the owner of the location, police found out that she in fact was not the true owner and did not have the ability to grant permission to use the home. After speaking with the true owner, who admitted that they were discussing leasing options with the party host, police arrested the partygoers for unlawful entry. An odd thing occurred once at the police station, however. The police charged the partygoers with disorderly conduct when the arrest occurred based on probable cause of unlawful entry.
This becomes an issue because you need probable cause to make an arrest. So, how can the police originally have probable cause for unlawful entry, but then charge these partygoers for disorderly conduct? SCOTUS explained that the officer’s intent in establishing probable cause is not determinative. The officer in Wesby likely changed the charge to disorderly conduct during the booking process, even though no police officers testified about observing any activities warranting a disorderly conduct charge. The Court reasoned that, under the totality of the circumstances, the officers made an entirely reasonable inference that the party goers knew they were not invited.
Justice Ginsburg’s concurrence took a slightly different approach. She wrote “[t]his case . . . leads me to question whether this Court, in assessing probable cause, should continue to ignore why police in fact acted.” The officer in Wesby had no idea if the party goers were violating the unlawful entry law, which means he had no reason to have probable cause that this was occurring either. However, under the current standard from Whren, we do not care how the officer obtained their subjective probable cause determination. Additionally, Justice Ginsburg states that “I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.”
Alec Rolain is a law clerk with Ambrose Law Firm, PLLC in Minnesota. He is finishing his second year at Mitchell Hamline School of Law in St. Paul, MN. Prior to law school, Alec attended St. Mary’s University of Minnesota in Winona where he played baseball and made the MIAC all-sportsmanship team. Criminal Defense Lawyer St. Paul; DWI Attorney St. Paul MN; and Criminal Justice Lawyer St. Paul MN.