Probable Cause: an Overview

January 21, 2015

Probable cause is the standard  by which officers of the law determine whether they have grounds to obtain an arrest or search warrant, to arrest without a warrant, or to charge someone with a crime. The probable cause standard is guaranteed by the Fourth Amendment of the United States Constitution:

"The 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."

Thus, probable cause means that police must have a good enough reason to:

  • Obtain a warrant to arrest a suspect for a crime or to search or seize property,
  • Arrest a suspect without a warrant, or
  • Charge a suspect with a crime.

The Supreme Court, in Brinegar v. United States, defined probable cause as “where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.” In other words, probable cause exists when a reasonable person would believe, based on facts and circumstances known to the officer, that a crime is being committed.

Obtaining a Warrant

Probable cause is required for an officer to obtain a search or arrest warrant. First, the officer signs an affidavit that there is probable cause and states the facts and circumstances supporting its existence. If the judge then finds that there is probable cause, he or she issues the warrant.

Probable cause for arrest exists when a reasonable person would believe, based on what the facts the officer knows, that the suspect has committed, is committing, or is about to commit a crime. Mere detentions, such as traffic stops, do not require probable cause, but only reasonable suspicion, which is a lower standard. Reasonable suspicion, defined in Terry v. Ohio, exists when a reasonable police officer would believe, based on facts and circumstances, that a person is involved in criminal activity. But if a detention turns into an arrest, probable cause must exist.

Probable cause to search property exists when a reasonable person would believe, based on facts and circumstances known to the officer, that a crime was committed in the place to be searched or that evidence of a crime is located at that place.

Probable cause to seize property exists when a reasonable person would believe, based on the facts and circumstances known to the officer, that the item to be seized is evidence of a crime, is contraband, or has been stolen. An officer can only search for the items specified in the warrant, but can seize other evidence or contraband that he or she happens upon in the course of the search.

Arrests and Searches Without a Warrant

In Florida, an officer may arrest a suspect without a warrant in a few circumstances, such as when the person has committed a crime in the officer’s presence. If an officer arrests a suspect without a warrant, however, he or she must show probable cause after the arrest, before prosecution can begin. Additionally, officers may conduct searches without a warrant in some situations, including when they have permission from the person who is in charge of the premises being searched, searches incident to arrest, and emergencies threatening the public safety or the loss of evidence.

Charging a Suspect with a Crime

Finally, prosecutors must show probable cause before a suspect can be charged with a crime. In an arrest, the arrest is valid even if some of the grounds for arrest are flawed, as long as the officer has valid probable cause on some grounds. However, to charge a suspect with a crime, the prosecution must have probable cause for that particular crime.

If you have been arrested or charged with a crime without probable cause, you can sue for false arrest or malicious prosecution. If you think you may have been arrested or charged or that your property has been searched or seized without a warrant, please contact West Palm Beach criminal defense attorney William Wallshein for a free consultation.