Probable Cause is required as a basis for:
- Arrest Warrants
- Search Warrants
- Arrests generally (regardless of whether an arrest warrant is required).
Probable Cause is required for all arrests, but a warrant is not. An officer: (may & may not)…
- May arrest someone in public without a warrant even if it’s practicable to secure one;
- May NOT arrest a person in the person’s home without an arrest warrant, absent an exception to the warrant requirement, e.g., plain view.
Probable Cause is not necessarily required for a search and seizure…Why?
Hint: 1. Terry; 2. Law & Econ
- Reasonable Suspicion may apply where the intrusion is minor, such as a stop & frisk.
- Where intrusion on privacy is slight and interest to society is high, there may be no need for individualized suspicion , e.g., for sobriety/border checkpoints.
Probable Cause exists when…
Hint 3 Elements and then 2 different scenarios for an arrest and a search
Probable Cause exists when
(1) the facts/circs are within the officer’s knowledge;
(2) he has trustworthy information; and
(3) it is sufficient to warrant a “person of reasonable caution” to believe that:
A. (in) Arrest: (1) an offense has been committed, and (2) the person arrested committed it.
B. (in) search: an item described with particularity will be found in the place to be searched.
US v. Draper: A federal narcotics agent was given info from a reliable informant that D was dealing drugs and that he had gone to Chicago to purchase heroin and would return to Denver. Informant provided info about D’s clothing, bag, etc and when D arrived in Denver, agent arrested him w/o warrant.
Holding: Informant’s past reliability, accurate description of D’s bad, and date of arrival gave agent PC necessary to arrest the D WITHOUT a warrant.
Probable Cause is an object concept.
How does this play with the definition that “someone with reasonable caution” would believe the officer’s knowledge and trustworthy information.
An officer’s subjective impressions are typically not important; however, courts often consider the specific experiences and techniques, e.g., Terry, of the officer whose actions are under scrutiny.
Objective Proof for Probable Cause may be founded upon:
- DI
- HI
- Direct Information: secured by personal observation
- Hearsay information:
- –Arresting officers can rely on the info from other POs
- –No weight should be given to unsupported conclusory statements
Aguilar v. Texas (Baseline showing for PC rule)
Rule: In order for a magistrate judge to lawfully issue a warrant as required by the 4th Amendment, the officer must provide the judge with more than conclusions; the judge must be provided with sufficient information to reach an independent determination that PC exists.
How is an affiant’s information generally perceived?
When may a magistrate consider hearsay?
- An affiant’s information is generally considered trustworthy because it is given under oath
- A magistrate judge may consider hearsay so long as it is reasonably trustworthy.
Aguilar-Spinelli Test: to obtain a valid search warrant based on an informant, there must be…
This has been overruled
- Basis of Knowledge for Claim: The magistrate must be informed of some underlying circumstances relied on by the person providing the information
- –Satisfied by personal observation
- –May be self-verifying if so rich - Veracity & Reliability: the judge must be informed of the reasons to support the conclusion the affiant is reliable & credible.
- -Satisfied where facts show (1) informant was credible, or (2) info in the specific case was reliable (said happened, happened)
Illinois v. Gates:
ACTUAL TEST FOR PROBABLE CAUSE
Totality of the circumstances test: an affidavit must provide the magistrate judge with a substantial basis for determining the existence of probable cause.
–based on preponderance of the evidence
CW v. Dunlap: is training and experience alone enough to crate probable cause?
(Facts: Cop sees exchange of money for object in high crime area, arrests D w/o a warrant claiming he had sufficient probable cause.)
Holding: No.
Rule: Training & Experience alone is not enough to create probable cause where an officer only observed a single isolated transaction. Mere suspicion is insufficient.
Rule: There must be a nexus between the officer’s experience and the specific events.
Other Rules for Probable Cause:
- Can officers use their intuition and prior experience to establish probable cause?
- Can flight alone generally establish PC?
- Between PC for search and PC for arrest, which can go stale?
- Is refusing to talk to police officers allowed to be considered for PC purposes?
- Can admissions of a suspect establish PC?
- An officer may rely on their intuition and prior experience to establish probable cause/
- Flight alone is not enough to establish PC, but it’s a factor.
- PC for search can go stale; PC for arrest cannot.
- Refusing to talk to police cannot be considered for PC because it violates a suspect’s constitutional rights.
- Admissions of a suspect can establish PC.
Florida v. Harris: how do we gauge a dog’s reaction when determining probable cause?
Rule: PC determinations for dogs should be like other PC hearings; each party must be allowed to make best case arguments using the totality of the circumstances test.
