PROBABLE CAUSE

Question 1

What is probable cause?

Answer 1

Probable cause refers to the reasonable belief, based on factual knowledge or reliable information, that a crime has been committed or that evidence of a crime will be found.

Question 2

Can probable cause to search exist without probable cause to arrest?

Answer 2

Yes, it is possible to have probable cause to search without having probable cause to arrest, and vice versa.

Question 3

What does probable cause mean in the context of a search warrant?

Answer 3

In the search warrant context, probable cause means enough credible information to reasonably provide a ‘fair probability’ that the object sought will be found at the place to be searched.

Question 4

What is the role of the issuing magistrate in determining probable cause?

Answer 4

The issuing magistrate must make a practical, common-sense decision based on the affidavit’s circumstances to determine if there is a fair probability that contraband or evidence of a crime will be found.

Question 5

Is a magistrate required to issue a search warrant if probable cause is not established?

Answer 5

No, a magistrate cannot issue a search warrant unless she concludes that the affidavit contains probable cause.

Question 6

What is the standard of proof for probable cause?

Answer 6

Probable cause is more than mere suspicion but less than prima facie proof and less than a preponderance of the evidence.

Question 7

What types of information can be considered in determining probable cause?

Answer 7

The rules of evidence that apply at trial do not apply; hearsay, privileged information, and other inadmissible information may be considered.

Question 8

How should evidence be evaluated in the context of probable cause?

Answer 8

The evidence must be seen and weighed as understood by those versed in law enforcement.

Question 9

What example illustrates probable cause in the context of narcotics?

Answer 9

An officer’s knowledge of a suspect buying 400 pounds of freon under an assumed name provided probable cause to believe evidence of illegal methamphetamine manufacturing would be discovered.

Question 10

What was the outcome in Bailey’s case regarding heavy foot traffic?

Answer 10

The warrant was invalid because heavy foot traffic alone, without more evidence, was insufficient to establish probable cause.

Question 11

What does the Compassionate Use Act imply for search warrants?

Answer 11

If a search warrant is based on valid probable cause, officers are not required to abandon their search based on an alleged defense of possession.

Question 12

What did the Supreme Court rule regarding search warrants for materials protected by the First Amendment?

Answer 12

The Supreme Court rejected the argument that a heightened probable cause standard applies when the warrant involves materials protected by the First Amendment.

Question 13

True or False: Officers must stop their investigation once they have minimum evidence to establish probable cause.

Answer 13

False.

Question 14

What is the significance of the 2016 California Electronic Communications Act (CalECPA)?

Answer 14

CalECPA established new requirements for searching electronic storage devices and services, including protocols for obtaining search warrants.

Question 15

What did the Rangel court conclude about the need for a second warrant to search a computer?

Answer 15

The court found that a second warrant was not necessary to search a computer if the computer was identified as an item to be seized in the original search warrant.

Question 16

Fill in the blank: Probable cause requires a _______ that evidence of a crime will be found.

Answer 16

fair probability

Question 17

What was the outcome of Fisher’s case regarding the doctor’s certificate for medicinal marijuana?

Answer 17

Fisher’s potential defense did not invalidate the probable cause on which the warrant was issued.

Question 18

What is required for a search warrant regarding a dispensary under the Medical Marijuana Program Act?

Answer 18

Operators of a storefront dispensary do not qualify as ‘primary caregivers’ based solely on designation by a medical marijuana patient.

Question 19

What types of evidence may be seized under a search warrant related to gang activity?

Answer 19

Items of gang indicia and specific categories of gang-related paraphernalia.

Question 20

What example illustrates the connection between a suspect’s behavior and probable cause?

Answer 20

Nicholls’ recorded conversation about not wanting anyone to ‘mess’ with his computer contributed to probable cause for obtaining a search warrant.

Question 21

What is required for a magistrate to issue a search warrant?

Answer 21

A fair probability that evidence will be found when the search is conducted.

This is established based on specific facts and the affiant’s training, knowledge, and experience.

Question 22

What did Nicholls tell his mother about his computer?

Answer 22

He did not want anybody ‘messing with’ it.

This statement contributed to the probable cause for the search warrant.

Question 23

What is the significance of the distinction between ‘content’ and ‘record information’ in digital searches?

Answer 23

Users do not have a reasonable expectation of privacy in electronic data that is not content.

This distinction influences the legal considerations during searches.

Question 24

What did the police use to identify IP addresses associated with child pornography in Evensen’s case?

Answer 24

RoundUp software to search peer-to-peer file-sharing networks.

This method was upheld because Evensen did not have a reasonable expectation of privacy in the shared folder.

Question 25

What is the ruling on affidavits containing National Firearms Act data?

Answer 25

They cannot be used to establish probable cause for a warrant. ## Footnote Officers cannot rely on the Leon good faith exception if the information violates confidentiality provisions.

Question 26

What is the role of an affiant's expertise in investigations of Child Sexual Abuse Material (CSAM)?

Answer 26

A magistrate may rely on the affiant's expertise to determine probable cause. ## Footnote This includes evaluating images of suspected CSAM.

Question 27

What should officers include in warrant applications regarding CSAM images?

Answer 27

Images should be included when a subjective evaluation is necessary. ## Footnote This directive has been criticized as contrary to best practices.

Question 28

What is the element of 'time' in the context of probable cause?

Answer 28

It refers to the relationship between information and the timing of obtaining the warrant. ## Footnote The affidavit must show evidence will be found when the warrant is executed.

Question 29

What are anticipatory search warrants?

Answer 29

Warrants issued based on a showing that evidence will be located at a specific place at some future time. ## Footnote They are constitutional under the Fourth Amendment.

Question 30

What must an affidavit for an anticipatory warrant demonstrate?

Answer 30

* It is probable that contraband will be at the described location when executed * There is a fair probability that the triggering event will occur ## Footnote The triggering condition often involves future events like the delivery of contraband.

Question 31

What was the Supreme Court's ruling regarding the particularity requirements of anticipatory warrants?

Answer 31

Conditions precedent to execution do not need to be included in the warrant. ## Footnote This overturned previous Ninth Circuit decisions.

Question 32

What happens if a court finds illegally obtained information in an affidavit?

Answer 32

The affidavit must be re-evaluated without the illegally obtained information. ## Footnote If sufficient probable cause remains, the warrant can still be valid.

Question 33

What is the 'independent source doctrine'?

Answer 33

A legal principle that allows for a warrant to be valid if probable cause exists without illegally obtained information. ## Footnote It requires determining if the police would have sought the warrant without the tainted information.

Question 34

What was the outcome in Tousant's case regarding the phone search?

Answer 34

The warrant was upheld despite an initial improper search of the phone. ## Footnote Sufficient probable cause remained after excising the tainted information.

Question 35

What occurs if part of a search warrant is found to be overbroad?

Answer 35

Evidence will not be suppressed if it was seized under a portion of the warrant that was not overbroad. ## Footnote This was established in Holmsen case.