||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (February 2011)|
In United States criminal law, probable cause is the standard by which persons acting under the color of law has the grounds to obtain a warrant for, or as an exception to the warrant requirements for, making an arrest or conducting a personal or property search, etc. when criminal charges are being considered. It is also used to refer to the standard to which a grand jury believes that a crime has been committed in conjunction with a preponderance of the evidence. This term comes from 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 seized.
"Probable" in this case may relate to actual statistical probability, or to a general standard of common behavior and customs. The context of the word "probable" here is not exclusive to community standards and does not predate statistics, as some have suggested.
- 1 Definition by Countries
- 2 History and development
- 3 Probationers and parolees
- 4 Use of trained drug dogs
- 5 Cyber surveillance
- 6 Consent to search
- 7 Accident investigation
- 8 Related cases
- 9 Probable cause hearings
- 10 See also
- 11 References
- 12 External links
Definition by Countries
In the criminal code of some European countries, notably Sweden, probable cause is a higher level of suspicion than "justifiable grounds" in a two level system of formal suspicion. The latter refers only to the suspect being able to and sometimes having a motive to commit the crime and in some cases witness accounts, whereas probable cause generally requires a higher degree of physical evidence and allows for longer periods of detention before trial. See häktning.
A common definition is "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true". Notable in this definition is a lack of requirement for public position or public authority of the individual making the recognition, allowing for use of the term by citizens and/or the general public.
In the context of warrants, the Oxford Companion to American Law defines probable cause as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)". "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction. Even hearsay can supply probable cause if it is from a reliable source or supported by other evidence, according to the Aguilar–Spinelli test.
In Brinegar v. United States, the U.S. Supreme Court defines 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.”
History and development
The history of the United States use of probable cause and its integration in the Fourth Amendment has roots in English common law and the old saying that “a man’s home is his castle”. This is the idea that someone has the right to defend their “castle” or home from unwanted “attacks” or intrusion. In the 1600s this saying started to apply legally to landowners to protect them from casual searches from government officials.
In the 1700s the British use of the writs of assistance and general warrants, which allow for authorities to search wherever and whenever sometimes without expiration date, in the American colonies were brought up in several court cases. The first was in Massachusetts in 1761 when a customs agent submitted for a new writ of assistance and Boston merchants challenged the legality of it. In the case the lawyer for the merchants James Otis argued that writs of assistance violated the fundamentals of English Law and was unconstitutional. John Adams, a lawyer at the time who later wrote the Massachusetts provision that the Fourth Amendment relied heavily on, was impacted by James Otis’s argument.
A case against general warrants was Entick v. Carrington. In this case Lord Camden the chief judge said that general warrants were not the same as specific warrants and that parliament or case law could not authorize general warrants. Along with these statements Lord Camden also affirmed that the needs of the state were more important than the individuals rights. This upheld the ideology of the social contract while holding to idea that the government purpose was to protect the property of the people. He called for the government to seek reasonable mean in order to search private property as well as a cause.
Probationers and parolees
In early cases in the United States, the Supreme Court held that when a person is on probation, the standard required for a search to be lawful is lowered from "probable cause" to "reasonable grounds" or "reasonable suspicion." Specifically, the degree of individualized suspicion required of a search was a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable. The Supreme Court held, "Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term 'probable cause,' a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable...When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable."
Later, in Samson v. California, the Supreme Court ruled that reasonable suspicion is not even necessary: "The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality."
The court held that reasonableness, not individualized suspicion, is the touchstone of the Fourth Amendment. It has been proposed that Fourth Amendment rights be extended to probationers and parolees, but such proposals have not gained traction. There is not much that remains of the Fourth Amendment rights of probationers after waiving their right to be free from unreasonable searches and seizures. An essay called "They Released Me from My Cage...But They Still Keep Me Handcuffed" was written in response to the Samson decision.
It has been argued that the requirement that a police officer must have individualized suspicion before searching a parolee's person and home was long considered a foundational element of the Court's analysis of Fourth Amendment questions and that abandoning it in the name of crime prevention represents an unprecedented blow to individual liberties.
Use of trained drug dogs
In the United States, use of a trained dog to smell for narcotics has been ruled in several court cases as sufficient probable cause. A K-9 Sniff in a public area is not a search according to the Supreme Court’s ruling in 1983 United States v. Place. A more recent Supreme Court case has held that a K-9 Sniff in a public area is a search, however. In this particular case, Place was in the New York Airport, and DEA agents took his luggage, even though he refused to have his bag searched. His luggage smelled of drugs, and the trained dog alerted the agents to this. Dogs alerting their officers provides enough probable cause for the officer to obtain a warrant. The DEA then procured a warrant and found a sizable amount of drugs in Place’s luggage. It was not considered a search until after the warrant because a trained dog can sniff out the smell of narcotics, without having to open and look through the luggage.
The power of probable cause by K-9 units smelling for drugs is not limited to just airports, but even in public parking lots, high crime neighborhood streets, mail, visitors in prisons, traffic stops, schools, etc. If there is an incident where the dog alerts its officer, the probable cause from the dog is considered enough to conduct a search, as long as one of the exceptions to a warrant are present, such as plain view, incident to arrest, automobile, exigency, or with a stop and frisk. During a traffic stop and checkpoint, it is legal for police to allow a drug dog to sniff the exterior of the car. This is legal as long as it does not cause the traffic stop to be any longer than it would have been without the dog. If the dog finds a scent, it is again a substitute for probable cause.
Under the 2001 USA Patriot Act, law enforcement officials do not need probable cause, in order to access communications records, credit cards, bank numbers and stored emails held by third parties. They only need reasonable suspicion that the information they are accessing is part of criminal activities. Under this, officers are authorized for a court order to access the communication information. Only certain information can be accessed under this act (such as names, addresses, and phone numbers, etc.). Probable cause is needed for more detailed information because law enforcement needs a warrant to access additional information. Generally, law enforcement is not required to notify the suspect.
Consent to search
If voluntary consent is given and the individual giving the consent has authority over the search area, such as a car, house, business, etc. then a law enforcement officer does not need probable cause or even reasonable suspicion. If the person does not give voluntary consent, then the officer needs probable cause, and in some cases, a search warrant may be required to search the premises. Unless another exclusion to the fourth amendment of the US constitution occurs, when the person withdraws their consent for searching, the officer has to stop looking immediately.
In the United States, the term probable cause is used in accident investigation to describe the conclusions reached by the investigating body as to the factor or factors which caused the accident. This is primarily seen in reports on aircraft accidents, but the term is used for the conclusion of diverse types of transportation accidents investigated in the United States by the National Transportation Safety Board or its predecessor, the Civil Aeronautics Board.
In the United States
- The Supreme Court decision Illinois v. Gates lowered the threshold of probable cause by ruling that a "substantial chance" or "fair probability" of criminal activity could establish probable cause. A better-than-even chance is not required.
- The decision in Terry v. Ohio, established that "stop and frisks" (seizures) may be made under reasonable suspicion if the officer believes a crime has been committed, is, or soon will be committed with a weapon concealed on such person.
- In United States v. Matlock, the Court announced the "co-occupant consent rule" which permitted one resident to consent in the co-occupant's absence. The case established that an officer who made a search with a reasonable belief that the search was consented to by a resident did not have to provide a probable cause for the search.
- However, in Georgia v. Randolph, the Supreme Court ruled, thus replacing Matlock, when officers are presented with a situation wherein two parties, each having authority to grant consent to search premises they share, but one objects over the other's consent, the officers must adhere to the wishes of the non-consenting party.
- New Jersey v. T. L. O., set a special precedent for searches of students at school. The Court ruled that school officials act as state officers when conducting searches, and do not require probable cause to search students' belongings, only reasonable suspicion.
- In O'Connor v. Ortega, the Court relied on T.L.O. to extend the reasonable suspicion standard to administrative searches of public employees' belongings or workplaces when conducted by supervisors seeking evidence of violations of workplace rules rather than criminal offenses.
Probable cause hearings
In the various states, a probable cause hearing is the preliminary hearing typically taking place before arraignment and before a serious crime goes to trial. The judge is presented with the basis of the prosecution's case, and the defendant is afforded full right of cross-examination and the right to be represented by legal counsel. If the prosecution cannot make a case of probable cause, the court must dismiss the case against the accused.
- Hald, Anders (1990). A History of Probability and Statistics and Its Applications before 1750. New York: Wiley. p. 44. ISBN 0471502308.
- Handler, J. G. (1994). Ballentine's Law Dictionary (Legal Assistant ed.). Albany: Delmar. p. 431. ISBN 0827348746.
- Brinegar v. United States, 338 U.S. 160 (1949).
- Zalman, Marvin (2011). Criminal procedure : constitution and society (6th ed.). Upper Saddle River, N.J.: Pearson/Prentice Hall. p. 62. ISBN 9780132457613.
- Zalman, Marvin (2011). Criminal procedure : constitution and society (6th ed.). Upper Saddle River, N.J.: Pearson/Prentice Hall. p. 63. ISBN 9780132457613.
- Griffin v. Wisconsin, 483 U.S. 868 (1987).
- United States v. Knights, 534 U.S. 112 (2001).
- Samson v. California, 547 U.S. 843 (2006).
- Koshy, Sunny A. M. (1987–1988), Right of All the People to be Secure: Extending Fundamental Fourth Amendment Rights to Probationers and Parolees, The 39, Hastings L. J., p. 449
- Kneafsey, Sean M. (1994–1995), Fourth Amendment Rights of Probationers: What Remains after Waiving Their Right to be Free from Unreasonable Searches and Seizures, The 35, Santa Clara L. Rev., p. 1237
- Binnall, James M. (2006–2007), They Released Me from My Cage...But They Still Keep Me Handcuffed: A Parolee's Reaction to Samson v. California 4, Ohio St. J. Crim. L., p. 541
- Cacace, Robert (2007), Samson v. California: Tearing down a Pillar of Fourth Amendment Protections 42, Harv. C.R.-C.L. L. Rev., p. 223
- Wallentine, Ken. "The Dog Day Traffic Stop - Basic Canine Search and Seizure." (2008). Web. 21 Oct. 2014. http://policek9.com/html/drugdog.html.
- Doyle, Charles. “The USA PATRIOT Act: A Legal Analysis”. (2002). Web. 30 Nov 2014. http://assets.opencrs.com/rpts/RL31377_20020415.pdf
- Lemons, Bryan R. “SEARCHING A VEHICLE WITHOUT A WARRANT” Web. 30 Nov 2014. https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research-by-subject/4th-amendment/searchingavehicle-consent.pdf
- Illinois v. Gates, 462 U.S. 213 (1983).
- Terry v. Ohio, 392 U.S. 1 (1968).
- United States v. Matlock, 415 U.S. 164 (1974).
- Georgia v. Randolph, 547 U.S. 103 (2006).
- New Jersey v. T. L. O., 468 U.S. 1214 (1985).
- O'Connor v. Ortega, 480 U.S. 709 (1987).
- Legal information about probable cause
- The Lawful Arrest FAQ entry on probable cause 12 3
- Further information from Flexyourrights.org
- Congressional Research Service