DC: Arrest for future crime was without probable cause

The arrest of defendant for carrying a weapon, a police baton, was without probable cause to believe he was going to presently use it against another person. Also, search incident of his car for the future potential crime of impersonating an officer is without probable cause. Tuckson v. United States, 77 A.3d 357 (D.C. 2013):

Although the trial court specifically found that the police lacked probable cause to believe that Tuckson had already committed the offense of impersonating a police officer, it did find that probable cause existed to believe that Tuckson “was about to commit the crime of impersonating a police officer.” However, the trial court expressed some uncertainty about whether the police were permitted to make an arrest if they had probable cause to believe a crime was “going to be committed in the future.” Accordingly, we must also inquire whether probable cause to believe that appellant was about to commit the crime of impersonating a police officer could have justified his arrest. We conclude that it did not.

To be clear, we share the trial court’s doubt that the Fourth Amendment permits the police to arrest (as opposed to temporarily detain) a person to deter the future commission of a crime. The government quotes Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), as authority for the proposition that the police may arrest a suspect upon probable cause to believe that “the suspect has committed, is committing, or is about to commit an offense.” We note, however, that the “is about to commit an offense” language is not included in a long line of cases, including more recent ones, in which the Supreme Court describes the probable cause standard. See, e.g., Safford United School Dist. No. 1 v. Redding, 557 U.S. 364, 370, 129 S. Ct. 2633, 174 L. Ed. 2d 354 (2009) (referring to the “belief that an offense has been or is being committed”) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949), and Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925)); Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004) (citing United States v. Watson, 423 U.S. 411, 417-24, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), and Brinegar). Further, the government cites no cases in its brief where an arrest was upheld on probable cause that a crime was about to be committed. Accordingly, we are doubtful that an arrest to prevent a crime from being committed can be justified. Even if it were permitted by the Fourth Amendment, the phrase “about to commit” implies immediacy, and we can easily conclude that the officers in this case lacked probable cause to believe that Tuckson’s conduct would rise to the level of the crime of impersonating a police officer in the immediate future.