What is Probable Cause?

The Fourth Amendment to the United States Constitution protects individuals from Governmental seizure of their persons, houses, papers, and effect. The Amendment goes on to say warrants shall be issued by a neutral magistrate, and that no warrant shall be issued absent probable cause. So, what happens when police, or other government agents, violate those protections against an individual? In most cases, if police obtain evidence in violation of one’s rights under the 4th Amendment, that evidence is excluded from admission into evidence at any subsequent hearing or trial. This is referred to as The Exclusionary Rule, and it applies equally to the Federal authorities as it does to each individual State.

It is important to note that, even before the passage of our Constitution, or the Bill of Rights, society was governed by “Common Law.” Common Law was the culmination of centuries of laws and court rulings from England and carried over to the Colonies. So, when the Fourth Amendment references that no warrant shall issue absent probable cause, they are referring to a basic concept of the Common Law.

A Reasonable Belief That a Crime Has or Will be Committed

Black’s Law Dictionary defines Probable Cause as “sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime.” The Fourth Amendment did not take away the power of police to make an arrest absent a warrant, nor did it remove an officer’s ability to search absent a warrant, where probable cause existed. Under The Exclusionary Rule, an arrest or search absent a warrant is presumed to be unreasonable, and in the absence of a warrant to arrest or search a person or premises, the government carries the burden of proving that the police conduct was reasonable under the totality of the circumstances.

The Exclusionary Rule

In cases where the police acted upon a warrant that was issued by a neutral magistrate, and evidence of contraband or other illegal activity is discovered, there is usually no attendant violation of the Fourth Amendment, except where police acted in bad faith in obtaining the warrant, or in executing a warrant that they reasonably knew was defective. In every other case, where police make an arrest or conduct a search without a warrant, there is always the possibility that the Exclusionary Rule may apply if there is no justification for not obtaining the warrant. Over the years, the courts have carved out many exceptions to the warrant requirement, such as:

• Observation by the officer of a felony or misdemeanor committed in their presence;
• Searches of automobiles or other conveyances;
• Searches of persons/belongings of those in transit (airports, train, or bus stations);
• Searches of persons or premises incident to a lawful arrest;
• Searches of persons or premises based upon consent.

The courts have refused to apply the Exclusionary Rule in cases where such conduct occurred without a warrant, so long as, under the totality of the circumstances, the officer’s conduct was reasonable, and probable cause was found to exist.

Crimes committed in the officer’s presence

It is not uncommon for police officers to effect an arrest or conduct a search without having a warrant in their possession. As long as they have, upon viewing the totality of the surrounding circumstances, sufficient probable cause. Where the crime is being committed directly in front of them and they can view it, hear it, smell it, with their own senses, then an arrest or search is likely to be upheld by the courts.

What is a “Pat Down” or a “Stop & Frisk”?

However, there are instances where the police do not witness a crime per se, but they may have observed certain behavior, or made certain observations, that give the officer a reasonable suspicion that something illegal may be happening, or about to happen. In such circumstances, it has been held that an officer may temporarily stop an individual for brief questioning. If in that moment the officer has a reasonable suspicion that the individual may be armed and dangerous, then the officer is empowered to conduct a limited pat-down of the exterior clothing to determine if a weapon is present. This is known as the “Stop and Frisk” doctrine, and if such an encounter gives more information that allows the officer to have probable cause that a crime is indeed being committed, then an arrest and search can follow.

What is the “Terry Doctrine”?

The key case on this point is Terry v. Ohio, 392 U.S. 1 (1968). In that case, an officer on patrol noticed several men standing outside of a jewelry store. These men would take turns looking inside the establishment through the front window, walking back and forth and talking amongst themselves. At this point, the officer did not witness anything illegal. However, he became suspicious of their activities, as he believed that these men were preparing to commit a robbery. The officer approached the men and began to question them. When one of them became fidgety and nervous, the officer noted a bulge under the jacket. He patted the man down and felt the presence of a firearm. The officer then made the arrest for possessing the firearm.

When Can an Officer Conduct a Stop?

In justifying the officer’s conduct, the Court ruled that the suspects activities were sufficiently questionable to raise a concern in the mind of the officer that a crime may happen. The Court ruled that the officer’s approach, questioning, the pat-down, the search of the person, the recovery of the weapon, were all reasonable under the totality of the circumstances. So, under Terry, an officer can conduct a stop of an individual for questioning as long as there are specific articulable facts that would lead one to suspect foul play; further, if the officer has specific articulable facts to believe that the person is armed and poses a threat, then a limited pat-down of the exterior of the clothing is in order. If that pat-down discloses an object that could be a weapon, police may then search the clothing and retrieve the suspected weapon.

The Terry doctrine has been applied to many situations where police have an encounter with a civilian where a crime is not being openly committed, but yet an investigation was made, probable cause is then discovered, and the arrest follows. These encounters usually happen during traffic stops, or in places of transit such as airports, train stations, or bus stations. When police observe any routine traffic violation, they are empowered to stop the vehicle and issue citations to the driver as may be appropriate. As long as the officer does not unduly delay the length of the stop beyond the initial purpose (e.g. motorist stopped for a broken tail light, then detained for an undue length of time for a narcotic-sniffing dog to come to the scene, any evidence obtained by that improper detainment would be suppressed under the Exclusionary Rule), and through normal investigation uncovers evidence of a crime, then the search and arrest would be upheld.

Warrantless Arrest in a Public Place

In the cases where police do see the crime committed before them, or in the case of a felony, they have independent probable cause from other reliable sources, it is without question that officers can effect a warrantless arrest in a public place, or anywhere that the suspect does not have a reasonable expectation of privacy, such as one’s home. However, even one’s residence is not completely immune from a warrantless entry for an arrest. If police are in hot pursuit of a fleeing felon, they can carry that chase wherever it leads to, including someone’s residence. Police may be able to search one’s home without a warrant if they have reason to believe that someone is in mortal danger, or, if they are given consent for the warrantless entry and search.

Warrantless Automobile Searches

In the case of automobile searches, the Court justified warrantless searches as long as there exists probable cause to believe that evidence of a crime will be found, by the very nature of an automobile. They are readily mobile, and can be driven away from the officer’s jurisdiction, the evidence destroyed or otherwise removed, before a warrant could be obtained. This doctrine came from a 1925 case involving a moonshine runner. In United States v. Carroll, 267 U.S. 132, it was held that law enforcement officers investigating violations of the Prohibition Act have the ability to stop and search vehicles where probable cause existed to believe contraband was present. This doctrine was held to allow an officer to conduct as thorough a search as a magistrate could allow by warrant (United States v. Ross (1982); this same doctrine was held to apply to a mobile home, as long as it was readily mobile and not hooked up to utilities or on blocks (California v. Carney, 1985).

Probable Cause from Informants or Other Sources

In circumstances where an officer does not directly witness a crime, probable cause can be obtained by other sources, referred to as informants. Informants can be anyone from a citizen who gives their identity and contact information to police, as well as criminals that are employed by police as paid informants, and anyone in the spectrum in between. In the past, the prosecution/ State’s Attorney had to show that the informant was known to the police, that the informant had a track record of reliability, and that the information was sufficiently corroborated. That test was later abandoned in favor of applying the “totality of all circumstances” test to determine whether the police properly acted on information. Typically, where the informant is a citizen that gave their information, it is deemed to be reliable information. If police act on less than reliable information, they run the risk that their efforts will never see the light of day in a courtroom.

Speak to an Experienced Criminal Attorney

If you, or someone you care for, is charged with a criminal offense, and the evidence against you was obtained following a search of persons, houses, papers, and effects, you need an experienced attorney that can contest the conduct of the officers in obtaining such evidence and obtain the suppression of such evidence. The lawyers at Mitchell S. Sexner & Associates LLC have many years of experience, and a proven track record of success. Contact our offices at (312) 644-0444  for a free, confidential, no obligation consultation.