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Probable Cause PROBABLE CAUSE “The requirement of probable cause has roots that are deep in our history.” 1 One of the most weighty decisions that officers must make on a regular basis is whether they have probable cause. It’s serious business because the existence of probable cause gives officers the legal authority to exercise what is unquestionably the most intrusive of police powers. Just consider some of the things officers can do when they have probable cause: Warrantless arrest: Officers can place a person under arrest, an act that is awesome in its ability to instantly strip from a person every vestige of personal freedom. Warrant arrest: They may forcibly enter the person’s house, conduct a search for him, and take him into custody. Search warrant: Officers may forcibly enter a person’s home, take complete control over the premises and everyone inside, then conduct an extensive search of each room. Each of these actions constitutes a dramatic exercise of police power and, to most people, would be a nightmarish experience. It might, therefore, be assumed that there must be some way for officers to determine with near-precision whether probable cause exists. Not by a long shot. In fact, when discussing probable cause and reasonable suspicion the courts are apt to say things like, “there is no exact formula” or it’s a “fluid concept” or “elusive concept.”2 Or they may try to explain probable cause by resorting to the old standby, “If the smoke is heavy enough, the deduction of a fire becomes reasonable.”3 This does not mean that probable cause is some legal brain twister that must be determined by resorting to guesswork, instinct, and occasionally a little luck. On the contrary, because the courts are routinely called upon to make probable cause determinations, their written opinions provide a wealth of information on how to determine whether probable cause exists. These opinions not only provide us with the basic principles that are applied, but also guidance as to the significance of specific recurring facts and combinations of facts. Although probable cause remains fundamentally a judgment call, officers who have a good working knowledge of the subject will be able to make an informed judgment—which is all that can be expected. AN OVERVIEW In this article we will be covering both probable cause to arrest and probable cause to search. We will also explore the closely-related subject of “reasonable 1 Henry v. United States (1959) 361 US 98, 100. 2 See United States v. Sokolow (1989) 490 US 1, 7; Illinois v. Gates (1983) 462 US 213, 232; United States v. Cortez (1981) 449 US 411, 417; People v. Anthony (1970) 7 Cal.App.3d 751, 762; People v. Torralva (1971) 17 Cal.App.3d 686, 690. 3 See People v. Hirsch (1977) 71 Cal.App.3d 987, 991, fn.1. 1 suspicion,” which is the level of proof needed to detain a suspect or make a car stop. Although these concepts will be examined in detail, we’ll start with the basics. Probable Cause to Arrest v. Reasonable Suspicion Probable cause and reasonable suspicion are both levels of suspicion that were created by the courts to prevent officers from hastily or arbitrarily interfering with people’s freedom. Both represent an accommodation between the needs of officers to solve crimes and apprehend criminals, and the right of citizens to be left alone.4 Probable cause and reasonable suspicion are, in the words of the United States Supreme Court, “the best compromise that has been found for accommodating these often opposing interests.”5 The main difference between the two is their role in criminal investigations. Reasonable suspicion is the level of proof necessary for a temporary detention, while probable cause is the level of suspicion that is required to make an arrest. Because an arrest is much more intrusive than a detention, the facts that are necessary to establish probable cause must have more convincing force than the facts needed for reasonable suspicion. As the U.S. Supreme Court explained: Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.6 Probable Cause to Arrest v. Probable Cause to Search Although probable cause to arrest and search are governed by the same basic principles,7 their focus is different. Probable cause to arrest is concerned with just 4 See Brinegar v. United States (1949) 338 US 160, 176; Gerstein v. Pugh (1975) 420 US 103, 112; Beck v. Ohio (1964) 379 US 89, 91. NOTE: The U.S. Supreme Court has applied Gates’ probable- cause principles in determining reasonable suspicion to detain. See Alabama v. White (1990) 496 US 325, 328-9; United States v. Sokolow (1989) 490 US 1, 7. 5 See Brinegar v. United States (1949) 338 US 160, 176. 6 Alabama v. White (1990) 496 US 325, 330. ALSO SEE People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609, 615; People v. Superior Court (Meyer) ( 1981) 118 Cal.App.3d 579, 584 [“(T)he strength of the information an officer should have to detain for questioning is much less than it would be for an arrest.”]; Dawkins v. Los Angeles (1978) 22 Cal.3d 126, 133; In re Tony C. (1978) 21 Cal.3d 888, 892; People v. Craig (1978) 86 Cal.App.3d 905, 911; People v. Fields (1984) 159 Cal.App.3d 555, 563. 7 See 2 LaFave, Search and Seizure (3rd edition 1996) Probable Cause § 3.1(a), pp. 6 [“It is generally assumed by the Supreme Court and the lower courts that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search.”]; Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 111; People v. Rosales (1987) 192 Cal.App.3d 759, 767-8; Greene v. Reeves (6th Cir. 1996) 80 F.3d 1101, 1106. NOTE: It appears the “fair probability” standard may require somewhat less proof than either “reasonable belief” or “strong suspicion.” See Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 936; 2 LaFave, Search and Seizure (3rd edition 1996) Probable Cause § 3.1(a), pp. 6 [“By like token, Illinois v. Gates, 2 one thing: facts that point to a certain suspect’s guilt. If there are enough of them, probable cause to arrest exists. Probable cause to search, on the other hand, is concerned with whether it is reasonable to believe that evidence of a crime is now located at a certain place.8 In many cases, having probable cause to search will automatically provide probable cause to arrest. For example, probable cause to believe there are drugs in a package being carried by suspect is also probable cause to arrest the suspect for possession of drugs.9 But probable cause to arrest does not always establish probable cause to search. This is because, in addition to the facts establishing the suspect’s guilt, there must be reason to believe that evidence of the crime is now located in the place to be searched. As the U.S. Supreme Court explained: The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that specific things to be searched for and seized are located on the property to which entry is sought.10 This is not to say there is no overlap between probable cause to arrest and search. In many cases, probable cause to arrest a suspect may provide probable cause to search his home or car. Conversely, probable cause to search a suspect’s home for, say, drugs or a murder weapon may provide probable cause to arrest. Also note that probable cause to search a home or business may exist even though there is no evidence whatsoever that the person who owns or controls the place committed a crime.11 For example, warrants routinely authorize a search of a suspect’s bank and telephone records even though the bank and phone company are not suspected of any crime. Not so routine, but still permissible, are warrants to search the home of a suspect’s friend or relative, even though there is no evidence linking the occupants of the house to criminal activity. For example, in People v. Fernandez12 narcotics officers were conducting surveillance on Cardona, a suspected drug dealer. As they followed him around they saw him engage in countersurveillance driving while wheeling and dealing on his cell phone and pager. They also saw him slip two envelopes under the door of an apartment occupied by Fernandez. The officers subsequently obtained a warrant to search Fernandez’s apartment. The warrant netted 934 grams of cocaine. which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well.” Citations omitted]. 8 See Illinois v. Gates (1983) 462 US 213, 230; People v. Gibson (2001) 90 Cal.App.4th 371, 380; U.S. v. Feliz (1st Cir. 1999) 182 F.3d 82, 86 [“A warrant application must demonstrate probable cause to believe that (1) a crime has been committed—the ‘commission’ element, and (2) enumerated evidence of the offense will be found at the place to be searched—the so-called ‘nexus’ element.”].
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