In
United States criminal law
Responsibility for criminal law and criminal justice in the United States is shared between the states and the federal government.
Parties to a crime
The parties or participants in a crime include the principal and accessory.
A principal is a ...
, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected
criminal
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
or the issuing of a
search warrant
A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...
. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
's 1964 decision ''
Beck v. Ohio'', is when "whether at
he moment of arrestthe facts and circumstances within
n officer's
N, or n, is the fourteenth letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''en'' (pronounced ), plural ''ens''.
History
...
knowledge and of which they had reasonably trustworthy information
resufficient to warrant a prudent
ersonin believing that
suspecthad committed or was committing an offense."
It is also the standard by which
grand juries
A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential crime, criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or ...
issue criminal indictments. The principle behind the standard is to
limit the power of authorities to perform random or abusive searches (
unlawful search and seizure), and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.
The term comes from the
Fourth Amendment of the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
:
''Probable'' in this case may relate to statistical
probability
Probability is the branch of mathematics concerning numerical descriptions of how likely an Event (probability theory), event is to occur, or how likely it is that a proposition is true. The probability of an event is a number between 0 and ...
or to a general standard of common behavior and customs. The context of the word ''probable'' here is not exclusive to community standards, and could partially derive from its use in formal mathematical statistics as some have suggested; but cf.
probō, Latin etymology.
In U.S. immigration proceedings, the “reason to believe” standard has been interpreted as equivalent to probable cause.
Probable cause should not be confused with
reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "specif ...
, which is the required criteria to perform a
Terry stop
A ''Terry'' stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity. ("In ''Terry v. Ohio'', 392 U. S. 1, 30 (1968), we held that the police can stop and briefly det ...
in the
United States of America
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territo ...
. The criteria for reasonable suspicion are less strict than those for probable cause.
Definition
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.
One nonlegal definition of probable cause is, “(A) reasonable ground for supposing that a charge is well-founded
(Merriam-Webster, 2019)
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
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "specif ...
, but weaker than what is required to secure a
criminal conviction
In law, a conviction is the verdict reached by a court of law finding a defendant Guilty (law), guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of "not proven", w ...
. Even
hearsay
Hearsay evidence, in a legal forum, is testimony from an under-oath witness who is reciting an out-of-court statement, the content of which is being offered to prove the truth of the matter asserted. In most courts, hearsay evidence is inadmis ...
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
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
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
![Constitution of the United States WDL2708](https://upload.wikimedia.org/wikipedia/commons/3/38/Constitution_of_the_United_States_WDL2708.jpg)
The use of probable cause in the United States and its integration in the
Fourth Amendment has roots in
English common law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
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
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
and general warrants, which allowed authorities to search wherever and whenever sometimes, without expiration date, in the American colonies were raised 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 its legality. 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
John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Fathers of the United States, Founding Father who served as the second president of the United States from 1797 to 1801. Befor ...
, a lawyer at the time who later wrote the Massachusetts provision on which the Fourth Amendment heavily relied, was impacted by James Otis's argument
A case against general warrants was the English case
''Entick v. Carrington'' (1765). In that case,
Lord Camden
Marquess Camden is a title in the Peerage of the United Kingdom. It was created in 1812 for the politician John Pratt, 2nd Earl Camden. The Pratt family descends from Sir John Pratt, Lord Chief Justice from 1718 to 1725. His third son from hi ...
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 individual's 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 means 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 in ''United States v. Knights'':
Later, in ''
Samson v. California'', the Supreme Court ruled that reasonable suspicion is not even necessary:
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
![Bundesarchiv Bild 183-1990-0703-023, Dresden, Rauschgiftspürhund im Einsatz](https://upload.wikimedia.org/wikipedia/commons/4/47/Bundesarchiv_Bild_183-1990-0703-023%2C_Dresden%2C_Rauschgiftsp%C3%BCrhund_im_Einsatz.jpg)
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
''United States v. Place'', 462 U.S. 696 (1983), is a Judgment (law), decision by the Supreme Court of the United States in which the Court held that it does not violate the Fourth Amendment to the U.S. Constitution for a trained police dog to Nos ...
''. In this particular case, Place was in the New York Airport, and
DEA
The Drug Enforcement Administration (DEA; ) is a United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within the U.S. It is the lead agency for domestic en ...
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. However, In
Florida v. Jardines
''Florida v. Jardines'', 569 U.S. 1 (2013), was a United States Supreme Court case which resulted in the decision that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a "search" within the mean ...
the court ruled that a police officer and narcotic-sniffing dog entering the porch of a home constitutes a search which invokes the requirement of probable cause or a valid search warrant
The power of probable cause by K-9 units smelling for drugs is not limited to just airports, but even in schools, public parking lots, high crime neighborhood streets, mail, visitors in prisons, traffic stops, 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 In criminal procedure law of the United States, an exigent circumstance allows law enforcement (under certain circumstances) to enter a structure without a search warrant, or if they have a " knock and announce" warrant, allows them to enter withou ...
, 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.
Cyber surveillance
Under the 2001
USA Patriot Act
The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of Congress, Act of the United States Congress, signed into law by President of the United States, President George W. Bush. The formal name of the statute is the Uniti ...
, law enforcement officials did not need probable cause to access communications records, credit cards, bank numbers and stored emails held by third parties. They only need reasonable suspicion that the information they were accessing was part of criminal activities. Under this, officers were authorized for a court order to access the communication information. Only certain information could be accessed under this act (such as names, addresses, and phone numbers, etc.). Probable cause was, and is, needed for more detailed information because law enforcement needs a warrant to access additional information. Generally, law enforcement was not required to notify the suspect. However, the text of the Patriot Act limits the application of that statute to issues that clearly involve the national security of the United States. The U.S. patriot Act expired on June 1, 2015.
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.
Accident investigation
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
The National Transportation Safety Board (NTSB) is an independent U.S. government investigative agency responsible for civil transportation accident investigation. In this role, the NTSB investigates and reports on aviation accidents and incid ...
or its predecessor, the
Civil Aeronautics Board
The Civil Aeronautics Board (CAB) was an agency of the federal government of the United States, formed in 1938 and abolished in 1985, that regulated aviation services including scheduled passenger airline serviceStringer, David H."Non-Skeds: Th ...
.
Related cases
In the United States
*The
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
decision ''
Illinois v. Gates
''Illinois v. Gates'', 462 U.S. 213 (1983), is a Fourth Amendment case. ''Gates'' overruled '' Aguilar v. Texas'' and ''Spinelli v. United States'', thereby replacing the Aguilar–Spinelli test for probable cause with the "totality of the circum ...
'' 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
''Terry v. Ohio'', 392 U.S. 1 (1968), was a landmark U.S. Supreme Court decision in which the Court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Sp ...
'', established that "stop and frisks" (seizures) may be made under
reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "specif ...
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
''Georgia v. Randolph'', 547 U.S. 103 (2006), is a case in which the Supreme Court of the United States, U.S. Supreme Court held that without a search warrant, police had no constitutional right to search a house where one resident Consent searches ...
'', 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. However, In
Safford Unified School District v. Redding The court ruled that strip searches of students required probable cause or a search warrant.
*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
Hearing, or auditory perception, is the ability to perceive sounds
In physics, sound is a vibration that propagates as an acoustic wave, through a transmission medium such as a gas, liquid or solid.
In human physiology and psycholog ...
typically taking place before
arraignment
Arraignment is a formal reading of a criminal charging document in the presence of the defendant, to inform them of the charges against them. In response to arraignment, the accused is expected to enter a plea. Acceptable pleas vary among jurisd ...
and before a serious crime goes to
trial
In law, a trial is a coming together of Party (law), parties to a :wikt:dispute, dispute, to present information (in the form of evidence (law), evidence) in a tribunal, a formal setting with the authority to Adjudication, adjudicate claims or d ...
. The
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
is presented with the basis of the
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
's case, and the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
is afforded full right of
cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and m ...
and the right to be represented by
legal counsel
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicitor, ...
. If the prosecution cannot make a case of probable cause, the court must dismiss the case against the accused.
Comparison with other countries
Sweden
In the criminal code of some European countries, notably
Sweden
Sweden, formally the Kingdom of Sweden,The United Nations Group of Experts on Geographical Names states that the country's formal name is the Kingdom of SwedenUNGEGN World Geographical Names, Sweden./ref> is a Nordic country located on ...
, 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''.
United Kingdom
England and Wales
Powers of arrest without a warrant can be exercised by a constable who 'has reasonable grounds' to suspect that an individual is "about to commit an offence", or is "committing an offence"; in accordance with the
Serious Organised Crime and Police Act 2005
The Serious Organized Crime and Police Act 2005 (c.15) (often abbreviated to SOCPA or SOCAP) is an Act of the Parliament of the United Kingdom aimed primarily at creating the Serious Organised Crime Agency. It also significantly extended and si ...
and the partially repealed
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise ...
. The concept of "reasonable grounds for suspecting" is used throughout the law dealing with police powers.
Scotland
In Scotland, the legal language that provides the police with powers pertaining to stopping, arresting and searching a person – who "has committed or is committing an offence",
Section 13, Criminal Procedure (Scotland) Act 1995
/ref> or is in possession of an offensive article, or an article used in connection with an offence – is similar to that England and Wales. The powers are provided by the Criminal Procedure (Scotland) Act 1995 and the Police, Public Order and Criminal Justice (Scotland) Act 2005.
See also
* Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
* Consent search
Consent searches (or consensual searches) are searches made by police officers in the United States based on the voluntary consent of the individual whose person or property is being searched. The simplest and most common type of warrantless sear ...
* Moral certainty
* Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "specif ...
* Preponderance of evidence
In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
* Reasonable doubt
Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, becau ...
* Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
* Terry stop
A ''Terry'' stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity. ("In ''Terry v. Ohio'', 392 U. S. 1, 30 (1968), we held that the police can stop and briefly det ...
* Warrantless searches in the United States
Warrantless searches are Search and seizure, searches and seizures conducted without court-issued search warrants.
In the United States, warrantless searches are restricted under the Fourth Amendment to the United States Constitution, Fourth Amen ...
References
External links
Legal information about probable cause
*The Lawful Arrest FAQ entry on probable caus
https://web.archive.org/web/20081011104543/http://binghamtonpmc.org/bhuston/lawful_arrest/LAFAQ.html 2
3
from Flexyourrights.org
Congressional Research Service
{{DEFAULTSORT:Probable Cause
Criminal law
Causality
Legal reasoning