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Criminal Procedure – Probable Cause Article Summary

Ignacio Martinez

CJA/315

4/15/19

Jason Huskey
Criminal Procedure – Probable Cause Article Summary

The fourth amendment to the United States Constitution protects people’s right to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures. Police

must obtain a search warrant from a judge, although courts have identified exceptions to this

rule, such as emergency situations and items plainly visible to police officers. A defendant

may ask a court to suppress evidence obtained in violation of the fourth amendment, which

prevents the state from using it in a criminal trial. The fourth amendment itself identifies the

criteria for obtaining a lawful search warrant. A police officer, or other official seeking a

warrant, must establish probable cause to the satisfaction of a judge, must make an oath or

affirmation as to the truth of the matters supporting probable cause, and must particularly

describe the place to be searched, and the persons or things to be seized. A search warrant is

invalid if it covers too broad an area or does not identify specific items or persons.

Typically, to obtain a warrant, an officer will sign an affidavit stating the facts as to why

there is an adequate reason to arrest someone, conduct a search or seize property. Judges issue

warrants if they agree, based on "totality of the circumstances" that adequate cause exists.

There are many instances where warrants are not required to arrest or search, such as arrests for

felonies witnessed in public by an officer. If a warrantless arrest occurs, probable cause must still

be shown after the fact, and will be required in order to prosecute a defendant.

The Supreme Court has defined the probable cause as an officer’s reasonable belief, based on

circumstances known to that officer, that a crime has occurred or is about to occur. An

officer may establish probable cause with witness statements and other evidence, including

hearsay evidence that would not be admissible at trial. An officer’s suspicion or belief, by

itself, is not enough to establish probable cause. The exclusionary rule requires courts to
Criminal Procedure – Probable Cause Article Summary

suppress evidence obtained through an unlawful search or seizure. Any evidence derived

from illegally obtained evidence must also be suppressed. This type of evidence is known as

the fruit of the poisonous tree. Computers and the internet present new challenges, since

digital evidence might be stored on devices in a suspect’s possession or on the various

Internet servers known as the cloud. The Supreme Court has ruled that a warrant is required

to search the contents of computers, cell phones, and other devices. Cloud storage remains a

subject of contention, with different courts reaching different conclusions.

Courts have allowed warrantless searches in situations where it would be impractical or

dangerous to delay a search to obtain a warrant. This might include an imminent threat to an

officer’s safety or a reasonable belief that a suspect will dispose of or destroy evidence while

police are waiting for a warrant. A police officer does not need the warrant to conduct a search if

a person with legal authority over the items or premises consents to a search. Another person

who also has legal authority over the premises may overrule consent to a search, but the Supreme

Court held in Fernandez v. California that the person must be physically present to prevent the

search. Police officers may conduct a limited search of a person when they have placed the

person under arrest. The search must be limited to the area of the person’s immediate control and

be for checking for weapons and evidence. Police must obtain a warrant, however, to search a

person’s cell phone after an arrest.

The automobile exception Related to the lawful arrest exception, this allows police to search a

vehicle without a warrant during the lawful arrest of the driver, but only if they reasonably

believe that the person under arrest might still be able to access the vehicle’s passenger

compartment, or the vehicle contains evidence relevant to the offense for which they are
Criminal Procedure – Probable Cause Article Summary

arresting the person. The Plain view and open fields exceptions an officer may seize property

that is visible from a location where the officer is lawfully present, provided that the officer has

probable cause to believe the property is contraband. This might include items that are visible in

the front seat of a vehicle during a lawful traffic stop. “Open fields,” defined as open areas of a

person’s property that are not directly adjacent to his or her residence, are not protected by the

Fourth Amendment and may be searched without a warrant.

Terry Stops the Supreme Court held in Terry v. Ohio, that police may “stop and frisk” a

person based on reasonable suspicion that the person has been, is, or will soon be involved in

criminal activity. “Reasonable suspicion” is a lower standard than “probable cause.” Evidence

discovered during what is now known as a Terry stop is admissible, even if police did not have a

warrant. Border Searches Officials at the United States border, as well as airports and seaports

that handle international travel, have broad discretion to conduct searches of individuals, their

personal effects, and their vehicles. Probable cause for arrest exists when facts and circumstances

within the police officer's knowledge would lead a reasonable person to believe that the suspect

has committed, is committing, or is about to commit a crime. Probable cause must come from

specific facts and circumstances, rather than simply from the officer's hunch or suspicion.

Detentions short of arrest do not require probable cause. Such temporary detentions require only

"reasonable suspicion." This includes car stops, pedestrian stops and detention of occupants

while officers execute a search warrant. "Reasonable suspicion" means specific facts which

would lead a reasonable person to believe criminal activity was at hand and further investigation

was required. Detentions can ripen into arrests, and the point where that happens is not always

clear. Often, police state that they are arresting a person, place him/her in physical restraints, or
Criminal Procedure – Probable Cause Article Summary

take other action crossing the line into arrest. These police actions may trigger the constitutional

requirement of probable cause. Someone arrested or charged without legal cause may seek

redress through a civil lawsuit for false arrest or malicious prosecution.

Criminal Procedure – Probable Cause Article Summary

References

https://www.washingtonpost.com/news/volokh­conspiracy/wp/2016/09/29/probable­cause­and­
cellphone­searches/?noredirect=on&utm_term=.ce897432ed1c