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Arrest – Probable Cause – Predicated on Officer’s Mistaken View of Law

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays

Issue/Holding: The test for probable cause is purely objective, so that the arresting officer’s intent to arrest for a crime that is in fact non-existent is irrelevant. Because in Repenshek’s instance probable cause to arrest indisputably existed, his arrest was not illegal even though the officer thought he was arresting Repenshek for a crime that, it turns out, doesn’t exist. ¶¶9-12.

Not exactly ground-breaking. Indeed, the Supreme Court recently made the same point, in Devenpeck v. Alford, 03-710, 12/13/04 [“Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”] That said, the test certainly presents the opportunity for mischief; among other things, it makes it very difficult if not impossible to argue that a given arrest was an invalid “pretext.”


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