When the Police Can Make an Arrest: Probable Cause

Posted by Chris Morales on Fri, Aug 15, 2014 @ 11:00 AM

The Morales Law Firm would like to share this article: When the Police Can Make an Arrest: Probable Cause published by NOLO. For more information visit: http://www.nolo.com/legal-encyclopedia/criminal-law

"Probable cause" requires more than a mere suspicion that a suspect committed a crime, but not as much information as would be required to prove a suspect guilty beyond a reasonable doubt.

The Fourth Amendment makes probable cause the key term in the arrest process. The police need probable cause to make an arrest, whether they are asking a judge to issue an arrest warrant or justifying an arrest after it has been made. (See How much "probable cause" do cops need?) Some principles of probable cause are well settled:

To establish probable cause, police officers must be able to point to objective factual circumstances leading them to believe that a suspect committed a crime. A police officer can’t establish probable cause by saying something like, “I just had a hunch that the defendant was a burglar.” (To learn about a related concept, see What is reasonable suspicion?)

Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that the facts on the ground establish probable cause. But if a judge examines that same information and disagrees, then probable cause does not exist (or did not exist, if the question is being decided after an arrest is made).

Probable cause to arrest may have existed at the time of the arrest, even if the police later turn out to be wrong. Put differently, an arrest is valid as long as it is based on probable cause, even if the arrested person is innocent. In this situation, probable cause protects the police against a civil suit for false arrest if the charges are later dismissed or the defendant is acquitted at trial.

How Much Information = Probable Cause?

These principles leave open the most important issue concerning probable cause: How much information do police officers need to convince a judge to issue an arrest warrant or to justify a warrantless arrest? In general, probable cause requires more than a mere suspicion that a suspect committed a crime, but not as much information as would be required to prove a suspect guilty beyond a reasonable doubt.

Because it is an abstract concept, a firm definition of probable cause is impossible. The Fourth Amendment doesn’t provide a definition, so it’s up to judges to interpret the meaning of probable cause on a case-by-case basis, taking into account:

  • what the judge thinks the amendment’s drafters meant by the term probable cause
  • previous judges’ interpretations in similar fact situations, and
  • the judge’s views about police rights vs. criminals’ rights.

Examples of Probable Cause  

Judges help to define the meaning of probable cause each time they issue a warrant or decide a case in which the issue arises.

Example: Officer Furman arrives at Simpson’s Jewelry store moments after it’s been robbed. Officer Furman sees broken glass inside the jewelry store. A man claiming to be Simpson, the owner, tells the officer that a man approximately 6'5" tall and weighing over 300 pounds held up the store at gunpoint and escaped with rings and watches in a small brown paper bag. A few minutes later, less than a mile away from the jewelry store, Officer Furman pulls a car over for speeding. The driver matches the description of the robber, and on the seat next to the driver is a small brown paper bag and a couple of watches with the price tags attached. Though Officer Furman did not see the robbery itself, the driver matches the unusual physical description of the robber and has the property that Simpson said was missing. Furman has probable cause to arrest the driver.

Example: Same case. Assume that the person claiming to be Simpson, the jewelry store owner, was actually the robber’s accomplice. The accomplice gave Officer Furman a phony description and then fled after the officer drove off. The driver pulled over by the officer for speeding later is able to prove that he is the lawful owner of the watches that the officer saw on the seat. In this scenario, Officer Furman had no reason to doubt the word of the person claiming to be Simpson, and the broken glass corroborated “Simpson’s” statement that a robbery had occurred. Thus, the officer had probable cause to make the arrest, even though the information turned out to be incorrect.

Example: Officer Seesit pulls over a car and its three occupants for speeding. The officer searches the car with the driver’s consent and finds baggies of cocaine stashed behind an armrest in the back seat. All three occupants of the car say that they didn’t know that the cocaine was in the car. Seesit has probable cause to arrest the car’s occupants. In the absence of evidence demonstrating that the cocaine belonged to a specific occupant, the officer could reasonably conclude that all of them knew about and possessed the cocaine (Maryland v. Pringle, U.S. Sup. Ct. 2003).

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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Tags: arrest, probable cause, police