Probable cause

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In United States criminal law, probable cause refers to the standard by which a police officer may make an arrest, conduct a personal or property search or obtain a warrant. It is also used to refer to the standard to which a grand jury believes that a crime has been committed. 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. — Fourth Amendment to the United States Constitution

1 Definition
2 Related cases
3 Probable cause hearings
4 Controversy
5 External links

[edit] Definition

The most widely held common definition would be "a reasonable belief that a crime has been committed" and that the person is linked to the crime with the same degree of certainty. An alternative definition has been proposed, "reason to believe that an injury had criminal cause", which is claimed to be more protective of individual rights as was intended by the authors of the Bill of Rights. See the Critique below.

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 is supported by other evidence.

Probable cause is also used in accident investigations 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.

[edit] Related cases

The Supreme Court decision Illinois v. Gates (1983) 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 (1968) established that some brief seizures may be made without probable cause. If an officer has a reasonable suspicion that a crime has been committed or will soon be committed, that officer may briefly detain a suspect to frisk him for weapons and question him. This is known as a "Terry stop."

In United States v. Matlock, 415 U. S. 164 (1974), the Court announced the "co-occupant consent rule" which permits one resident to consent in the co-occupant's absence. The case established that an officer who makes a search with a reasonable belief that the search was consented to by a resident does not have to provide a probable cause for the search.

T.L.O v. New Jersey

[edit] Probable cause hearings

In the United States a probable cause hearing is the preliminary hearing that typically takes place after 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 out a case of probable cause the court must dismiss the case against the accused. See also: evidentiary hearing.

[edit] Controversy

This critique comes principally from the Lawful Arrest FAQ, a document distributed as part of the USENET FAQs for many years. It makes the argument that the commonly accepted definition of probable cause is harmful, as it enables autonomous police action (whereas police should be reactive) and arbitrary enforcement of laws.

The most common definition, "a reasonable belief that a crime has been committed", has been criticized on the ground that the definition grants arbitrary powers to the police, and thus fails to protect the rights of individuals, which is ostensibly the purpose of its mention in the Bill of Rights. The effect is that the United States, despite these protections, is moving towards a police state, where citizens accused of crimes are denied due process, and many of their so-called crimes are victimless. The alternative definition "reason to believe that an injury had criminal cause" corrects these deficiencies.

Here are examples of the problems with the most common definition:

Circular reasoning: Which came first, law or crime? If crime is "things which the law prohibits", and law defines "that which is crime", we have self-reference. An a priori notion of what denotes crime needs to exist, such as, "when a person causes intentional injury to another person". Since the phrase first occurs in the United States Bill of Rights - which was defining the law - it has been suggested that probable cause must be defined outside the system of law, and in concrete terms of a connection between the accused and an injured victim.

Semantic Error: The most common usage of "probable cause" is usually something like "the officer had probable cause to believe that a crime occurred". A simple substitution of the common definition ("reasonable belief that a crime occurred") results in the bizarre "the officer had a reasonable belief that a crime has been committed to believe that a crime occurred". The repetition suggests either our definition or this usage is incorrect.

Individual Discretion: The system of government defined by the US Constitution, with separation of powers, checks and balances, and civilian participation and oversight of every branch of government suggests that the decision to arrest should not be made spontaneously by any individual, and that special dangers exist when that individual is a police officer. The language of the Constitution suggests that arrests, searches and seizures should be a deliberative process, starting with the "oath or affirmation" of a civilian complaint, and that all indictments of wrongdoing should be made by a Grand jury (a body of the people) and not by a government agent (the police officer).

Failure to make connection to victim's injury: The purpose of the Fourth Amendment is to protect the rights of citizens against the abuses of government. The Declaration of Independence states that the Colonists were being "transported beyond the seas to be tried for pretended offenses". Might these pretended offenses be petty victimless crimes? Clearly this is an example of the abuses of the police power which the Fourth Amendment intended to prevent.

Improper sequence of events

A careful reading of the Fourth Amendment reveals the arrest sequence should be

Civilian complaint ("oath or affirmation")
Probable Cause determined
Specific warrant issued (an important check against the execution of standing orders)
Arrest made

However, most arrests today are warrantless, and probable cause hearings are almost always made after the fact.

Weak Burden of proof: To prove "reason to believe that a crime has been committed", all that is needed is the statement of opinion of one person, the arresting officer. With "reason to believe that an injury has criminal cause", a more rigorous burden of proof is required, that is, demonstratable facts connecting the accused with the victim's injury.

In America today many police actions are the result autonomous police actions (e.g., traffic stops) and arrests for victimless crimes (see, Ain't Nobody's Business If You Do by Peter McWilliams).