What Is Probable Cause And Can I Challenge It?
Probable Cause is a simple and yet tricky legal term. For defense attorneys, it is often a frustrating “gray” area that seems to frequently morph in favor of law enforcement.
The basic definition for probable cause depends on the circumstances of law enforcement’s involvement. The probable cause definition is slightly different for a warrantless arrest (i.e. DUI on the side of the road), an arrest warrant, and search warrants.
Probable Cause For Arrest:
For a warrantless arrest, probable cause exists when facts and circumstances within the police officer’s knowledge would lead a reasonable person to believe that the suspect has committed, is committing, is about to commit a crime. In the case of a warrantless arrest, it doesn’t mean that there is no need to establish probable cause. Under this circumstance, the arresting officer must make a report that articulates the reasons he or she met the standard of probable cause and can justify the prosecution charging the defendant with a crime. The officer can not say he or she “had a feeling” or “could just tell something wasn’t right” to justify the arrest. The officer must be able to articulate specific facts that supported the probable cause standard. In the case of DUI, the smell of alcohol on someone’s breath, visible open beer cans in the front seat, or slurring of speech might support the officer’s decision to find probable cause for arrest even when the driver does not submit to (fail) road side tests or submit to the breathalyzer. The police officer’s report is then forwarded to the Prosecutor and presented in Court before the Judge. The Judge may read openly the Statement of Probable Cause but, generally, defendant’s through their attorney, will waive the reading of probable cause.
Probable Cause For An Arrest Warrant and/or Search Warrant:
When an officer does not witness a crime but believes a crime is occurring or will take place in the future, he or she can try to obtain a warrant. The affidavit filled out by the officer must state specific facts that support probable cause to arrest someone, do a search of property, or seize property. In the case of a warrant to search, the officer must articulate that there is probable cause to believe a crime was committed at the place to be searched, or that evidence of a crime exists at the location. If the warrant is to seize property, the officer must articulate that there is probable cause to believe that the item to seize is contraband, is stolen, or constitutes evidence of a crime.
If the warrant is based on information from informants, the Judge must make an additional special consideration as to the basis of the informant’s knowledge as well as the trustworthiness of the informant. It is very important that law enforcement is truthful in their statements regarding informants and their history. Obviously, it is relevant if the informant has been known to lie in the past or has reason to frame someone else for their crime. Warrants can be sought during the work week but there is also a Judge “on call” over the weekend or after hours who is available to do telephonic warrants. Hence, warrants can be obtained at anytime that law enforcement deems it necessary.
Why do most attorneys waive the probable cause reading?
As noted above, probable cause is a “gray” area that rarely favors the rights of the defendant. While probable cause is rooted in the protections for citizens as stated in the Fourth Amendment that, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched,” this doesn’t always equate to a high standard upon review. In fact, most criminal defense attorneys will tell you that the bar is quite low. The review is based on a reasonable person standard rather than the beyond a reasonable doubt standard. Additionally, the term Probable Cause was never formally defined by the Framers. As courts have attempted to craft its meaning over time, the reality is that there is no black and white definition or standard for probable cause. The Court must simply make a factual determination and consider whether he or she believes the officer was Constitutionally justified in making the arrest. In reality, it is quite rare to witness a Judge find a lack of Probable Cause. In the right circumstances, it is certainly worth an attorney contesting probable cause, but it is typically not where defense finds the most success.
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