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Unpacking Probable Cause What it means and how it works

Unpacking Probable Cause: What It Means and How It Works


What is Probable Cause?

Probable cause is a legal standard that is used in law enforcement to determine whether an officer or other government official has sufficient proof to make an arrest, conduct a search or seize property. Probable cause can be defined as more likely than not and is based on specific facts and circumstances that would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime. Probable cause is the level of evidence required to obtain a warrant, make an arrest, or conduct a search.  Probable cause meets more than the hunch or suspicion threshold and allows the law enforcement officer to make an arrest, seize property, or apply for a search warrant.

Probable cause is determined by evaluating the totality of the circumstances, including the officer’s observations, information provided by witnesses, informants, and any other relevant evidence. The standard is a flexible one that requires only a probability or a substantial chance of criminal activity, rather than absolute certainty. Another way of thinking of probable cause is more likely than not or 51% or greater likelihood. Probable cause is an important protection against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution, requiring a certain level of proof for a law enforcement officer to arrest, enter or seize property.

When seeking a warrant, whether it be an arrest or a search warrant, probable cause is the threshold required for the judge or clerk magistrate to issue the warrant. Under the 4th amendment of the United states Constitution, it states that a warrant is required when a law enforcement officer makes an arrest, seizes or searches a suspects properties. Over the many years there have been various exceptions to the warrant clause and is based on the impracticality of applying for a search or arrest warrant. These exceptions have been defined and redefined various times over the years through case law, common law and statues.

Example: 4th Amendment Warrant Exception

You are dispatched to a residence for a large fight in the front of a large white house. Your close by and you hear what sounds like four gunshots as you pull up to the house, you see a man standing over another man, holding a gun, smoking from the tip. The male on the ground appears to be gravely injured if not deceased by the amount of blood pooling in the driveway. Well, in this situation, it wouldn’t be very practical to drive to the station, write up a search, seizure or arrest warrant, return and seize the firearm and place the suspect under arrest. In the above example, officers can use an exception or exigent circumstance to circumvent the 4th amendment right and arrest the male suspect immediately while seizing the firearm he was holding as evidence.

There are many factors that would be used in determining probable cause to arrest, search or seize evidence such as.

  • Observable behavior: If a person’s behavior is suspicious or unusual, it can be used as a factor in determining probable cause.

  • Witness statements: Statements from witnesses who observed suspicious behavior can be used as evidence to establish probable cause.

  • Physical evidence: Physical evidence, such as drugs or weapons, can be used to establish probable cause if it is found on the person or property of the suspect.

  • Circumstantial evidence: Evidence that suggests a person may have committed a crime, such as being in the vicinity of a crime scene, can be used as a factor in determining probable cause.

  • Information from informants: Information provided by a reliable informant can be used to establish probable cause.

  • Prior knowledge: Prior knowledge of a suspect’s criminal history or past behavior can be used as a factor in determining probable cause.

  • Suspicious movements: If a person is seen engaging in suspicious movements or actions, such as trying to conceal an object or running away from law enforcement, it can be used as a factor in establishing probable cause.

  • Corroborating information: Corroborating information from multiple sources, such as witness statements, physical evidence, or surveillance footage, can be used to establish probable cause.

  • Officer training and experience: An officer’s training and experience can be used as a factor in determining probable cause. For example, an officer who has experience with drug trafficking may be able to recognize behaviors or circumstances that suggest drug activity.

  • Anonymous tips: Anonymous tips can be used to establish probable cause, but the information must be reliable and the tip must be corroborated by other evidence.

  • Time and location: The time and location of the alleged crime or suspicious behavior can be used as a factor in determining probable cause. For example, if a crime is committed at night in a high-crime area, it may be easier to establish probable cause.

  • Probable cause may also be established through the application of scientific methods, such as DNA testing or fingerprint analysis.

Why probable cause is important to understand.

            Probable cause is one of the most important aspects of policing, as it is the threshold to either search, seize or arrest. Sometimes officers may lose key evidence through motions, known as a motion to surpress, for improperly obtained evidence, statements or testimony. When this evidence is suppressed, their may not be enough articulable facts without it to meet the probable cause threshold, potentially resulting in a dismissed case.

Example: Organized Car Theft Ring.

            An officer locates a suspect named Jimmy Jay for stealing a car, arrests him, handcuffs him, brings him back to the station and begins the booking process. Officer Decker, says to himself, I know “Jimmy”, he lives at 123 Jolene Ave. let me head down there and take a peek. Officer Decker goes to the address, shakes the handle, sees that the front door is unlocked and enters without a search warrant or exigent circumstances. Once inside, he sees 15 different sets of keys, and in the garage, there were two other reported stole motor vehicles. Officer Decker finds various other evidence linking jimmy and three other accomplices, Snap, Crackle and pop, to the stolen motor vehicles. This evidence included fingerprints, ledgers, video surveillance of the four working together and would be considered a home run of a case. Well Officer Decker never applied for or was granted a search warrant of Jimmy’s property. Snaps Attorney brings up the motion to suppress all of the evidence located in Jimmy’s house and well, it was an easy victory for the defense. After the fingerprints, ledger and even the video of the four disassembling a stolen motor vehicle was suppresses, there wasn’t enough evidence, or probable cause, linking Snap, Crackle or Pop to the stolen motor vehicles and they are released forthwith with their cases dismissed. What an awful feeling that would be, a homerun of a case dismissed, do to probable cause no longer existing.

What if Officers Are Unsure if They Have Enough for Probable Cause.

Sometimes when an officer is on the cusp of probable cause or have circumstantial evidence, they can put in a criminal complaint for a hearing requesting that a clerk magistrate or judge issues a summons or arrest warrant. A hearing is almost a lesser form of an arrest warrant that will be approved/denied during business hours and are typically no-violent and non-serious crimes. The judge or clerk magistrate will use the information the officer has placed into a report and in the complaint to determine if they believe their is enough evidence to issue a summons or place an arrest warrant on the defendant.

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By Branden

Branden is a Police Lieutenant who has investigated numerous crimes. He has written and executed multiple search warrants, conducted various protective sweeps, pat frisks and exit orders. He has been involved in numerous police vehicle chases, fights, disturbances, foot pursuits, suspect/hostage negotiations and felony stops. He is trained with an assortment of weapons. He has spoken with countless victims, witnesses and suspects and is using his experience to better protect our communities and loved ones by sharing his knowledge through his writings.

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