Probable cause
Encyclopedia
In United States
criminal law
, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, 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. This term comes from the Fourth Amendment
of the United States Constitution
:
"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.
". Another 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.
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.
or its predecessor, the Civil Aeronautics Board.
, 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.
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.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the standard to which a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
believes that a crime has been committed. This term comes from the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
:
"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.
Definitions in the United States of America
The best-known definition of probable cause is "a reasonable belief that a person has committed a crimeCrime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
". Another common definition is "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
belief that certain facts are probably
Probability
Probability is ordinarily used to describe an attitude of mind towards some proposition of whose truth we arenot certain. The proposition of interest is usually of the form "Will a specific event occur?" The attitude of mind is of the form "How certain are we that the event will occur?" The...
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
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' ";...
, but weaker than what is required to secure a criminal conviction. Even hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
can supply probable cause if it is from a reliable source or supported by other evidence, according to the Aguilar–Spinelli test.
Probationers and parolees
In early cases, 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 U.S. Supreme held that "[a]lthough 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
Samson v. California
Samson v. California, 547 U.S. 843 , was a case in which the Supreme Court of the United States affirmed the decision of the California Court of Appeal; which held that suspicionless searches of parolees are lawful under California law and that the search in this case was reasonable under the...
, 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
Touchstone (metaphor)
As a metaphor, a touchstone refers to any physical or intellectual measure by which the validity or merit of a concept can be tested. It is similar in use to an acid test, litmus test in politics, and a shibboleth.-Touchstone in literature:...
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.
Accident investigation
The term 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 BoardNational Transportation Safety Board
The National Transportation Safety Board 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 incidents, certain types of highway crashes, ship and marine...
or its predecessor, the Civil Aeronautics Board.
Other countries
In the criminal code of some European countries, notably SwedenSweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, 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.
Related cases
- The Supreme CourtSupreme Court of the United StatesThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision Illinois v. GatesIllinois v. GatesIllinois v. Gates, , 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 circumstances" test....
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. OhioTerry v. OhioTerry v. Ohio, 392 U.S. 1 , was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police...
, established that "stop and frisks" (seizures) may be made under reasonable suspicionReasonable suspicionReasonable 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' ";...
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. MatlockUnited States v. MatlockUnited States v. Matlock, 415 U.S. 164 was a Supreme Court of the United States case in which the Court ruled that the Fourth Amendment prohibition on unreasonable searches and seizures was not violated when the police obtained voluntary consent from a third party who possessed common authority...
, , 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. RandolphGeorgia v. RandolphGeorgia v. Randolph, 547 U.S. 103 , is a case wherein the U.S. Supreme Court held that without a search warrant, police had no constitutional right to search a house where one resident consents to the search while another resident objects. The Court distinguished this case from the "co-occupant...
, the Supreme Court ruled, thus replacing MatlockUnited States v. MatlockUnited States v. Matlock, 415 U.S. 164 was a Supreme Court of the United States case in which the Court ruled that the Fourth Amendment prohibition on unreasonable searches and seizures was not violated when the police obtained voluntary consent from a third party who possessed common authority...
, 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.New Jersey v. T. L. O.New Jersey v. T.L.O., 469 U.S. 325 is a decision by the Supreme Court of the United States addressing the constitutionality of a search of a public high school student for contraband after she was caught smoking. A subsequent search of her purse revealed drug paraphernalia, marijuana, and...
, 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 suspicionReasonable suspicionReasonable 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' ";...
.
- In O'Connor v. OrtegaO'Connor v. OrtegaO'Connor v. Ortega, , is a United States Supreme Court decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses...
, , 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 of the United States, a probable cause hearing is the preliminary hearingHearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
typically taking place before arraignment
Arraignment
Arraignment is a formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea...
and before a serious crime goes to trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
. The judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
is presented with the basis of the prosecution's case, and the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
is afforded full right of cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
and the right to be represented by legal counsel
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
. If the prosecution cannot make a case of probable cause, the court must dismiss the case against the accused.
See also
- Civil rightsCivil rightsCivil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
- Moral certaintyMoral certaintyMoral certainty is a concept of intuitive probability. It means a very high degree of probability, sufficient for action, but short of absolute or mathematical certainty....
- Preponderance of evidence
- Reasonable doubtReasonable doubtProof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
- Reasonable suspicionReasonable suspicionReasonable 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' ";...
- RightsRightsRights 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 theory...
External links
- Legal information about probable cause
- The Lawful Arrest FAQ entry on probable cause 12 3
- Further information from Flexyourrights.org
- Congressional Research Service