Probable cause

Probable cause is when the facts and circumstances, being both reasonable and trustworthy, are sufficient to warrant the belief that a crime has been or is being committed. Probable cause is what would lead a person of reasonable caution and prudence to believe that a person, evidence, or contraband related to a crime is in a specific place at a specific time. In most cases of lawful search and seizure, a law enforcement officer must show probable cause to a judge in order to obtain a search warrant or an arrest warrant.

The fourth Amendment of the United States Constitution states that, "the right of the people [.] against unreasonable search and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation." This right protects people from searches which are not preceded by probable cause. Probable cause, however, is not defined by the constitution and is subject to judicial interpretation. This means that a judge has final discretion over what does, and does not, constitute probable cause.

For a judge to issue a search warrant, probable cause must show that it is more than likely that a crime took place and specific items and people involved in the crime are likely to be found at a certain place at a certain time. Probable cause must be based on oath and affirmation, as stated in the constitution. Often an affidavit will provide probable cause that fulfills these requirements. An affidavit is a written statement made by police or private citizens under oath that establishes probable cause beyond suspicion.

Any information that is provided in an affidavit may be considered reliable when the informant: has been previously established as a reliable source, implicates themselves in the crime, provides information that is at least partially verified, is the victim of the crime, is a witness to the crime, or is an officer of the law. In most cases, when a reliable informant provides information about the likelihood of facts and circumstances related to a crime, probable cause has been established.

Probable cause does not require that all the facts of a crime be known in order to allow for a search or arrest warrant to be ordered. In some cases, an officer has the legal authority to search a person or his/her property without first obtaining a search warrant. A search warrant is not necessary when: the person consents to a search; the search is considered necessary to protect public safety or prevent the destruction of evidence, or during hot pursuit. An officer does not need to have a warrant to search a vehicle either. Though a search warrant is not necessary in these cases, probable cause must still be a precursor to the search. For example, a person who is pulled over cannot be searched without probable cause.

Probable cause is the good faith measure of criminal pursuits. This means that in order to act in good faith, an officer must have probable cause to search private property or make an arrest. If you or a loved one is involved in a criminal case where probable cause may be questionable, please contact us to speak with an attorney who can help.