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What is Probable Cause? and.. How is Probable Cause Established?

The Truth News — Tue, 26 Dec 2023 19:11:48 +0000

What is Probable Cause? and.. How is Probable Cause Established?

Probable Cause

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.

Probable Cause.—The concept of “probable cause” is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define “probable cause”; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. “In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”¹¹⁶ Probable cause is to be determined according to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”¹¹⁷ Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.¹¹⁸ For the same reason, reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.”¹¹⁹ Courts will sustain the determination of probable cause so long as “there was substantial basis for [the magistrate] to conclude that” there was probable cause.¹²⁰

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.¹²¹ In United States v. Ventresca,¹²² however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. “Recital of some of the underlying circumstances in the affidavit is essential,” the Court said, observing that “where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause,” the reliance on the warrant process should not be deterred by insistence on too stringent a showing.¹²³

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States¹²⁴ may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,¹²⁵ apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas¹²⁶ held insufficient an affidavit that merely asserted that the police had “reliable information from a credible person” that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,¹²⁷ the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the “totality” test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris¹²⁸ approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a “prudent person,” that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

subject and returned to the “totality of the circumstances” approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.¹²⁹ The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”¹³⁰ In evaluating probable cause, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”¹³¹

¹¹⁶ Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). “[T]he term ‘probable cause’ . . . means less than evidence which would justify condemnation.” Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An “anticipatory” warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, “there is a fair probability that contraband or evidence of a crime will be found in a specified place.” United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). “An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’” 547 U.S. at 94.

¹¹⁷ Brinegar v. United States, 338 U.S. 160, 175 (1949).

¹¹⁸ United States v. Ventresca, 380 U.S. 102, 108–09 (1965).

¹¹⁹ Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).

¹²⁰ Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party “must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause.” Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).

¹²¹ Byars v. United States, 273 U.S. 28 (1927) (affiant stated he “has good reason to believe and does believe” that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his conclusion that defendant had committed a crime). See also Nathanson v. United States, 290 U.S. 41 (1933).

¹²² 380 U.S. 102 (1965).

¹²³ 380 U.S. at 109.

¹²⁴ 358 U.S. 307 (1959). For another case applying essentially the same probable cause standard to warrantless arrests as govern arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar probable cause standard). See also Whitely v. Warden, 401 U.S. 560, 566 (1971) (standards must be “at least as stringent” for warrantless arrest as for obtaining warrant).

¹²⁵ 362 U.S. 257 (1960).

¹²⁶ 378 U.S. 108 (1964).

¹²⁷ 393 U.S. 410 (1969). Both concurring and dissenting Justices recognized tension between Draper and Aguilar.See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar).

¹²⁸ 403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972) (approving warrantless stop of motorist based on informant’s tip that “may have been insufficient” under Aguilar and Spinelli as basis for warrant).

¹²⁹ 462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Brennan, Marshall, and Stevens dissented.

¹³⁰ 462 U.S. at 213.

¹³¹ 462 U.S. at 238. For an application of the Gates “totality of the circumstances” test to the warrantless search of a vehicle by a police officer, see, e.g. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013). source

Probable Cause: Definition, Legal Requirements

What Is Probable Cause?

Probable cause is a requirement in criminal law that must be met before a police officer can make an arrest, conduct a search, seize property, or get a warrant.

KEY TAKEAWAYS

Probable cause is a requirement in criminal law that must be met before a police officer can make an arrest, conduct a search, seize property, or get a warrant.
The probable cause requirement stems from the Fourth Amendment of the U.S. Constitution, which states that citizens have the right to be free from unreasonable government intrusion into their persons, homes, and businesses.
Illinois v. Gates is a landmark case in the evolution of probable cause and search warrants.1

Understanding Probable Cause

Probable cause requires that the police have more than just suspicion—but not to the extent of absolute certainty—that a suspect committed a crime. The police must have a reasonable basis in the context of the totality of the circumstances for believing that a crime was committed. The probable cause requirement stems from the Fourth Amendment of the U.S. Constitution, which provides for the right of citizens to be free from unreasonable government intrusion into their persons, homes, and businesses.

Probable cause is important in two aspects of criminal law:

Police must have probable cause before they search a person or property, and before they arrest a person.
The court must find that there is probable cause to believe the defendant committed the crime before they are prosecuted.

When a search warrant is in effect, police must generally search only for the items described in the warrant, although they can seize any contraband or evidence of other crimes that they find. However, if the search is deemed to be illegal, any evidence found becomes subject to the “exclusionary rule” and cannot be used against the defendant in court.

What is malicious prosecution California?

CACI No. 1501. Wrongful Use of Civil Proceedings

“The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action.” Pace v Hillcrest Motor Co. (1980) 101 CA3d 476, 478. To establish the cause of action, a plaintiff must plead and prove that (CACI 1500, 1501):

Malicious prosecution is when someone sues or files criminal charges against someone else without probable cause and with harmful intent. It can be a civil or criminal lawsuit.

Some examples of malicious prosecution include:

Providing false evidence to the police that someone committed a crime
Suing someone for hurting them even if they never caused harm
A police officer or government official filing criminal charges against someone because of personal animosity, bias, or another reason outside the interests of justice

“The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action.” Pace v Hillcrest Motor Co. (1980) 101 CA3d 476, 478.

CA Penal Code § 170 (2022) – Misuse of the Warrant System – Crimes Against Public Justice

CA Penal Code § 170 (2022) click here

Penal Code § 170 . Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor.

In United States criminal law, probable cause is the standard^[1] by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court’s 1964 decision Beck v. Ohio, is when “whether at [the moment of arrest] the facts and circumstances within [an officer’s] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense.”^[2]

It is also the standard by which grand juries issue criminal indictments. The principle behind the standard is to limit the power of authorities to perform random or abusive searches (unlawful search and seizure), and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.^[3]

The Supreme Court in Berger v. New York 1967 explained that the purpose of the probable cause requirement of the Fourth Amendment is to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed.^[4] The term probable cause itself 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.

Probable in this case may relate to 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 could partially derive from its use in formal mathematical statistics as some have suggested;^[5] but cf. probō, Latin etymology.

In U.S. immigration proceedings, the “reason to believe” standard has been interpreted as equivalent to probable cause.^[6]

Probable cause should not be confused with reasonable suspicion, which is the required criteria to perform a Terry stop in the United States of America. The criteria for reasonable suspicion are less strict than those for probable cause. source

The Constitution protects you from having your person or property searched without probable cause. But what is probable cause?

This guide explains how probable cause is defined and what probable cause requirements means for you. You’ll also see some examples of probable cause so you can better understand how this legal rule applies in the real world.

The Probable Cause Requirement

The Fourth Amendment of the U.S. Constitution protects people against being unlawfully searched or unfairly arrested by police. The text of the amendment reads as follows:

“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.”

Because of this amendment, police cannot conduct a search without probable cause of wrongdoing. And they cannot arrest you unless there is probable cause of a crime being committed.

If you are searched without probable cause, any evidence collected must be suppressed. This means it cannot be used against you in court. If you are arrested without probable cause, the arrest is considered invalid and any evidence collected as a result of it will be suppressed.

Amdt4.5.3 Probable Cause Requirement

Fourth Amendment:

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.

The concept of probable cause is central to the meaning of the Warrant Clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define probable cause; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.¹ Probable cause is to be determined according to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.² Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.³ For the same reason, reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.⁴ Courts will sustain the determination of probable cause so long as there was substantial basis for [the magistrate] to conclude that there was probable cause.⁵

Footnotes

Jump to essay-1Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). [T]he term ‘probable cause’. . . means less than evidence which would justify condemnation. Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An anticipatory warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, there is a fair probability that contraband or evidence of a crime will be found in a specified place. United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’ 547 U.S. at 94.
Jump to essay-2Brinegar v. United States, 338 U.S. 160, 175 (1949).
Jump to essay-3United States v. Ventresca, 380 U.S. 102, 108–09 (1965).
Jump to essay-4Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).
Jump to essay-5Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause. Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).
source

read ALL OF THE FOURTH AMENDMENT BELOW JUST CLICK THE LINK

Fourth Amendment – Search and Seizure

What Is the Definition of Probable Cause?

According to the U.S. Supreme Court, probable cause exists when the “facts and circumstances” that police officers know about, based on “reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”

In other words, if a reasonably cautious person was provided with the information the police officers had at the time, that person would have a valid reason to believe that a crime was taking place. This reasonable belief of criminal activity is sufficient to justify either a search or an arrest.

Probable cause is determined based on the totality of the circumstances, so all available information can be considered in deciding if there is valid justification to either conduct a search or to arrest a suspect.

Satisfying the Probable Cause Requirement

Law enforcement officials must obtain a search warrant before conducting a search when it is possible to do so. A judge should only issue a search warrant if there is probable cause, which means there is enough credible information to suggest evidence of a crime will be discovered during the search.

Law enforcement officials must also obtain an arrest warrant before arresting someone when it is possible and practical to do so. Again, there must be probable cause or credible information suggesting someone most likely committed a criminal offense before an arrest warrant is issued.

Warrantless searches and warrantless arrests can occur in certain circumstances such as when police see evidence of a crime in plain view or when there are exigent circumstances because failure to act could result in the destruction of evidence or harm to others.

When a warrantless search or arrest occurs, law enforcement officials need to provide proof of probable cause after the fact. If law enforcement cannot satisfy the probable cause requirement, the evidence collected will be suppressed or the arrest will be deemed invalid.

Exceptions to the Probable Cause Requirement

There are very limited exceptions when evidence is still admissible even if it was obtained without probable cause.

Exceptions include circumstances where police were acting in good faith, but there was a problem they were unaware of. For example, if police arrest someone because they believe there is a valid warrant, but it turns out a mistake was made and there wasn’t, then evidence collected after the arrest would still be admissible.

Examples of Probable Cause

There are many different examples of probable cause that could justify a search or justify an arrest. Here are some common examples:

A law enforcement officer pulls someone over for a traffic violation. The officer notices drug paraphernalia on the front seat or notices the driver is slurring their words and is visibly intoxicated and likely committing a DUI. The drug paraphernalia or the obvious intoxication provides probable cause for a search of the vehicle and/or for an arrest.
A law enforcement officer observes someone pointing a gun at a convenience store employee in an apparent robbery. This unlawful act the officer observed provides probable cause for arrest.
A law enforcement officer visits a person’s home after a report of domestic violence and observes weapons in the home and bruises on the alleged victim. This provides probable cause for a search of the home and, if the available evidence creates a reasonable suspicion of a crime, also probable cause for an arrest.

Probable cause may come from officers directly observing evidence suggestive of criminal activity or from credible reports of criminal misconduct from trustworthy sources.

What If an Arrest or Search Occurs Without Probable Cause?

If you believe you were searched or arrested without probable cause, you can argue your constitutional rights were violated.

If a judge determines there was no probable cause and no exceptions such as the good faith exception apply, evidence collected as a result of the unlawful search or unlawful arrest will not be admissible in court against you.

In some cases, you may also have grounds for a lawsuit if you were searched or arrested without probable cause. However, suing the government can be a challenge even in situations where you believe your rights were violated as a result of sovereign immunity rules.

When you suspect a violation of your rights, it is very important to talk with an experienced attorney. If you have been charged with a crime, a lawyer can also help you to determine if you may be able to get evidence suppressed based on a constitutional violation. You should reach out to an attorney ASAP to protect yourself as you navigate the criminal justice system. source

California Penal Code § 170 – Misuse of the Warrant System – Crimes Against Public Justice

Probable Cause – Definition

Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). Under exigent circumstances, probable cause can also justify a warrantless search or seizure. Persons arrested without a warrant are required to be brought before a competent authority shortly after the arrest for a prompt judicial determination of probable cause.

Overview

Constitutional Basis

Although the Fourth Amendment states that “no warrants shall issue, but upon probable cause”, it does not specify what “probable cause” actually means. The Supreme Court has attempted to clarify the meaning of the term on several occasions, while recognizing that probable cause is a concept that is imprecise, fluid and very dependent on context. In Illinois v. Gates, the Court favored a flexible approach, viewing probable cause as a “practical, non-technical” standard that calls upon the “factual and practical considerations of everyday life on which reasonable and prudent men […] act”.1 Courts often adopt a broader, more flexible view of probable cause when the alleged offenses are serious.

Application to Arrests

The Fourth Amendment requires that any arrest be based on probable cause, even when the arrest is made pursuant to an arrest warrant. Whether or not there is probable cause typically depends on the totality of the circumstances, meaning everything that the arresting officers know or reasonably believe at the time the arrest is made.2 However, probable cause remains a flexible concept, and what constitutes the “totality of the circumstances” often depends on how the court interprets the reasonableness standard.3

A lack of probable cause will render a warrantless arrest invalid, and any evidence resulting from that arrest (physical evidence, confessions, etc.) will have to be suppressed.4 A narrow exception applies when an arresting officer, as a result of a mistake by court employees, mistakenly and in good faith believes that a warrant has been issued. In this case, notwithstanding the lack of probable cause, the exclusionary rule does not apply and the evidence obtained may be admissible.5 Unlike court clerks, prosecutors are part of a law enforcement team and are not “court employees” for purposes of the good-faith exception to the exclusionary rule.6

Application to Search Warrants

Probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered.7 For a warrantless search, probable cause can be established by in-court testimony after the search. In the case of a warrant search, however, an affidavit or recorded testimony must support the warrant by indicating on what basis probable cause exists.8

A judge may issue a search warrant if the affidavit in support of the warrant offers sufficient credible information to establish probable cause.9 There is a presumption that police officers are reliable sources of information, and affidavits in support of a warrant will often include their observations.10 When this is the case, the officers’ experience and training become relevant factors in assessing the existence of probable cause.11 Information from victims or witnesses, if included in an affidavit, may be important factors as well.12

The good faith exception that applies to arrests also applies to search warrants: when a defect renders a warrant constitutionally invalid, the evidence does not have to be suppressed if the officers acted in good faith.13 Courts evaluate an officer’s good faith by looking at the nature of the error and how the warrant was executed.14

Probable Cause in the Digital Age

While the Fourth Amendment’s probable cause requirement has historically been applied to physical seizures of tangible property, the issue of searches and seizures as applied to data has come to the Supreme Court’s attention in recent years.

In Riley v California (2014), the Supreme Court held: “The police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.” This would seem to group cell phones in with traditional items subject to traditional court tests and rules for searches and seizures.

Riley, however, did not end the inquiry into digital data’s interaction with the Fourth Amendment. For the 2018 term, the Supreme Court has agreed to hear Carpenter v. United States. Carpenter, accused of several robberies, was arrested after “his phone company shared data on his whereabouts with law-enforcement agents.”

Mr. Carpenter is challenging the “constitutionality of the Stored Communications Act, a law permitting phone companies to divulge information when there are ‘specific and articulable facts’ that are ‘relevant and material’ to a criminal investigation.” His complaint states that “his privacy rights under the Fourth Amendment were violated when his phone company shared data on his whereabouts with law-enforcement agents.” This case will likely have a significant impact on the role that probable cause plays in the ability of data companies to share user information with law enforcement.

1. See Illinois v. Gates, 462 U.S. 213, 232 (1983).
2. United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).
3. Prosecutor’s Manual for Arrest, Search and Seizure, § 6-6(b) (2004).
4. See Mapp v. Ohio, 367 U.S. 643 (1961), at 648, 655.
5. See Ariz. v. Evans, 514 U.S. 1 (1995).
6. People v. Boyer, 305 Ill. App. 3d 374 (1999), at 379-80.
7. See Gates, 462 U.S. at 238.
8. Whiteley v. Warden, 401 U.S. 560, 564 (1971).
9. Prosecutor’s Manual for Arrest, Search and Seizure, § 3-2(c) (2004).
10. See Franks v. Delaware, 438 U.S. 154, 171 (1978).
11. See United States v. Mick, 263 F.3d 553, 566 (6th Cir. 2001).
12. See United States v. Schaefer, 87 F.3d 562, 566 (1st Cir. 1996).
13. See United States v. White, 356 F.3d 865 (8th Cir. 2004).
14. See, e.g., United States v. Clark, 638 F.3d 89, 100–05 (2d Cir. 2011)
source

Supreme Court Interpretation of Probable Cause

The Fourth Amendment’s protection against unreasonable searches and seizures generally means law enforcement must have a warrant or “probable cause” to search someone’s property or make an arrest. But probable cause can come in many forms, and what qualifies as probable cause is something the Supreme Court has grappled with for many years.

What the Fourth Amendment Says

What is probable cause?

How is probable cause established?

How Does Law Enforcement Establish Probable Cause?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.¹ In United States v. Ventresca,² however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. Recital of some of the underlying circumstances in the affidavit is essential, the Court said, observing that where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the reliance on the warrant process should not be deterred by insistence on too stringent a showing.³

Probable Cause Based on Tips from Informants

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States⁴ may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,⁵ apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas⁶ held insufficient an affidavit that merely asserted that the police had reliable information from a credible person that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,⁷ the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the totality test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris⁸ approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a prudent person, that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

The Court expressly abandoned the two-part Aguilar–Spinelli test and returned to the totality of the circumstances approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.⁹ The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.¹⁰ In evaluating probable cause, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.¹¹

Probable Cause vs. First Amendment Rights

Where the warrant process is used to authorize the seizure of books and other items that may be protected by the First Amendment, the Court has required the government to observe more exacting standards than in other cases.¹² Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures. Thus, in Marcus v. Search Warrant,¹³the seizure of 11,000 copies of 280 publications pursuant to warrant issued ex parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman was voided. Failure to scrutinize the materials and to particularize the items to be seized was deemed inadequate, and it was further noted that police were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.¹⁴A state procedure that was designed to comply with Marcus by the presentation of copies of books to be seized to the magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven novels [seven of 59 listed titles were reviewed by the magistrate] before the warrant issued, the procedure was constitutionally deficient.¹⁵

Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no pre-seizure adversary hearing on the issue of obscenity is required if the film is seized not for the purpose of destruction as contraband (the purpose in Marcus and A Quantity of Books), but instead to preserve a copy for evidence.¹⁶ It is constitutionally permissible to seize a copy of a film pursuant to a warrant as long as there is a prompt post-seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the Court advised, the film may continue to be exhibited; if no other copy is available either a copy of it must be made from the seized film or the film itself must be returned.¹⁷

The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, as the determination of obscenity may not be made by the officer himself.¹⁸ Nor may a warrant issue based solely on the conclusory assertions of the police officer without any inquiry by the magistrate into the factual basis for the officer’s conclusions.¹⁹ Instead, a warrant must be supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity.’²⁰ This does not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by the First Amendment. Our reference in Roaden to a ‘higher hurdle of reasonableness’ was not intended to establish a ‘higher’ standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the ‘exigency’ exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate.’²¹

In Stanford v. Texas,²² the Court voided a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant that merely authorized the seizure of books, pamphlets, and other written instruments concerning the Communist Party of Texas. The constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.²³

However, the First Amendment does not bar the issuance or execution of a warrant to search a newsroom to obtain photographs of demonstrators who had injured several policemen, although the Court appeared to suggest that a magistrate asked to issue such a warrant should guard against interference with press freedoms through limits on the type, scope, and intrusiveness of the search.²⁴

Footnotes

1. Byars v. United States, 273 U.S. 28 (1927) (affiant stated he has good reason to believe and does believe that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his conclusion that defendant had committed a crime). See also Nathanson v. United States, 290 U.S. 41 (1933).

2. 380 U.S. 102 (1965).

3. 380 U.S. at 109.

4. 8 U.S. 307 (1959). For another case applying essentially the same probable cause standard to warrantless arrests as govern arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar probable cause standard). See also Whiteley v. Warden, 401 U.S. 560, 566 (1971) (standards must be at least as stringent for warrantless arrest as for obtaining warrant).

5. 362 U.S. 257 (1960).

6. 378 U.S. 108 (1964).

7. 393 U.S. 410 (1969). Both concurring and dissenting Justices recognized the tension between Draper and Aguilar. See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar).

8. 403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972) (approving warrantless stop of motorist based on informant’s tip that may have been insufficient under Aguilar and Spinelli as basis for warrant).

9. 462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Brennan, Marshall, and Stevens dissented.

10. 462 U.S. at 213.

11. 462 U.S. at 238. For an application of the Gates totality of the circumstances test to the warrantless search of a vehicle by a police officer, see, e.g. Florida v. Harris, 568 U.S. 237 (2013).

12. Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas, 379 U.S. 476, 485 (1965). For First Amendment implications of seizures under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), see First Amendment: Obscenity and Prior Restraint.

13. 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957).

14. Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).

15. A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).

16. Heller v. New York, 413 U.S. 483 (1973).

17. Id. at 492–93. But cf. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986), rejecting the defendant’s assertion, based on Heller, that only a single copy rather than all copies of allegedly obscene movies should have been seized pursuant to warrant.

18. Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji Sales v. New York, 442 U.S. 319 (1979); Walter v. United States, 447 U.S. 649 (1980). These special constraints are inapplicable when obscene materials are purchased, and there is consequently no Fourth Amendment search or seizure. Maryland v. Macon, 472 U.S. 463 (1985).

19. Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam).

20. New York v. P.J. Video, Inc., 475 U.S. 868, 873–74 (1986) (quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).

21. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

22. 379 U.S. 476 (1965).

23. 379 U.S. at 485–86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961).

24. Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more expressly adopting that position). In the Privacy Protection Act, Pub. L. No. 96-440, 94 Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection against searches and seizures not only of the news media and news people but also of others engaged in disseminating communications to the public, unless there is probable cause to believe the person protecting the materials has committed or is committing the crime to which the materials relate.

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What Is Reasonable Doubt?

Reasonable doubt is legal terminology referring to insufficient evidence that prevents a judge or jury from convicting a defendant of a crime. It is the traditional standard of proof that must be exceeded to secure a guilty verdict in a criminal case in a court of law.

In a criminal case, it is the job of the prosecution to convince the jury that the defendant is guilty of the crime with which he has been charged and, therefore, should be convicted. The phrase “beyond a reasonable doubt” means that the evidence presented and the arguments put forward by the prosecution establish the defendant’s guilt so clearly that they must be accepted as fact by any rational person.

If the jury cannot say with certainty based on the evidence presented that the defendant is guilty, then there is reasonable doubt and they are obligated to return a non-guilty verdict.

The Reasonable Doubt Standard

Penal Code Title 7, Chapter 2, Section 1096 of the California Penal Code states that a defendant in a criminal trial must be proven guilty to a moral certainty and beyond a reasonable doubt.

Section 1096 also states that a defendant is presumed innocent until the contrary is proven. If there is a reasonable doubt about the defendant’s guilt, they are entitled to an acquittal.

1096. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” source

“Beyond a reasonable doubt” means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt in order to render a guilty verdict.

California law establishes standards which must be met when making an arrest. Section 836 of Title 3, Chapter 5 (“Making of Arrest”) of the California Penal Code (PC) states that a peace officer may make an arrest in obedience to a warrant, or may, without a warrant, arrest a person:

• Whenever he/she has reasonable cause to believe that the person to be arrested has committed a public offense in his or her presence; or

• When a person arrested has committed a felony, although not in his or her presence; or

• Whenever he/she has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.

As defined by Black”s Law Dictionary, reasonable or probable cause is the state of facts which would lead a reasonable person to believe and suspect that the person sought is guilty of a crime. In other words, there must be more evidence for than against the prospect that the suspect has committed a crime, yet reserving some possibility for doubt. Case law pursuant to PC Section 836 further states that probable cause does not require evidence to convict but only to show that the person should stand trial.

Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt. source

KEY TAKEAWAYS

Reasonable doubt is insufficient evidence that prevents a judge or jury from convicting a defendant of a crime.
If it cannot be proved without a doubt that a defendant in a criminal case is guilty, then that person should not be convicted.
Each juror must walk into the courtroom presuming the accused is innocent and it is the job of the prosecutor to convince them otherwise.
Reasonable doubt is used exclusively in criminal cases because the consequences of a conviction are severe.
Other commonly used standards of proof in criminal cases are probable cause, reasonable belief and reasonable suspicion, and credible evidence.

Understanding Reasonable Doubt

Under U.S. law, a defendant is considered innocent until proven guilty. Reasonable doubt stems from insufficient evidence. If it cannot be proved without a doubt that the defendant is guilty, that person should not be convicted. Verdicts do not necessarily reflect the truth, they reflect the evidence presented. A defendant’s actual innocence or guilt may be an abstraction.

Beyond a reasonable doubt is the highest standard of proof used in any court of law and is widely accepted around the world. It is used exclusively in criminal cases because the consequences of a conviction are severe—a criminal conviction could deprive the defendant of liberty or even life.

Difference Between Belief And Certainty

It isn’t unusual for a juror to believe that the defendant is a criminal but not be convinced with certainty that they committed the particular crime they are charged with. That isn’t good enough to find the defendant guilty.

Reasonable doubt comes from certainty rather than belief. Belief and instinct are important in many instances in life but cannot be used to convict a defendant if not based on fact.2

Unreasonable Doubt

The reasonable doubt standard forces jurors to ignore doubts considered unreasonable when determining if a defendant is guilty. Unreasonable doubt, which often stems from the possibility that nonexistent or unpresented evidence might explain a defendant’s actions and lead to exoneration, is not enough to acquit the defendant.3

Exculpatory Evidence

Evidence favorable to the defendant in a criminal trial can also create reasonable doubt as to whether the accused committed the crime. The defendant’s team should not be viewed with more skepticism than the prosecutor’s team. Each shred of evidence should be given the same consideration. This is important as any reasonable doubt, however small, that the defendant did not do it is grounds for an acquittal.4

Other Standards of Proof

Other commonly used standards of proof in criminal cases are:

Probable Cause: A requirement found in the Fourth Amendment that the police have more than just suspicion that a suspect committed a crime before making an arrest, conducting a search, or serving a warrant.5
Reasonable Belief and reasonable suspicion: A reasonable presumption by a police officer that a crime was, is, or will be committed. This is more than a hunch and less than probable cause and is used to determine the legality of a police officer’s decision to take action.
Credible Evidence: Evidence that is deemed worthy of being presented in a court and to the jury.

Meanwhile, evidentiary standards in civil cases include:

Clear and convincing evidence: The judge or jurors have concluded that there is a high probability that the facts of the case as presented by one party represent the truth. The standard of clear and convincing evidence is used in some civil cases, and it may appear in some aspects of a criminal case, such as a decision on whether a defendant is fit to stand trial.6 The language appears in several U.S. state laws.
Preponderance of the evidence: Both sides have presented their cases, and one side seems more likely to be true. Most civil cases require a “preponderance of the evidence,” as this is a lower standard of proof.

Presumption of Innocence

The criminal justice system seeks to unearth the truth, convict the guilty, and let the innocent walk free. In order for this to work, each juror must walk into the courtroom presuming the accused is innocent.7

“It is better that 100 guilty persons should escape than one innocent person should suffer.”—Benjamin Franklin 8

This presumption requires that jurors have a skeptical mindset that must be overcome before they can reach a guilty verdict. The jurors must not just want to believe something or be swayed by prejudices. They must view each shred of evidence presented by the prosecution with skepticism.

Why Is Reasonable Doubt Important?

The reasonable doubt standard aims to reduce the chances of an innocent person being convicted. Criminal cases can result in hefty convictions, including death or life sentences, so a person should only be charged if the jurors are 100% confident, based on the evidence presented, of their guilt.

How Do You Prove Reasonable Doubt?

The jurors must walk into the courtroom presuming the accused is innocent. Reasonable doubt exists unless the prosecution can prove that the accused is guilty. This can be achieved by supplying evidence and inviting people to testify on the stand.

What Are the Three Burdens of Proof?

The three burdens of proof for criminal cases are “beyond a reasonable doubt,” “probable cause,” and “reasonable suspicion.”

What Is the Difference Between Doubt and Reasonable Doubt?

A doubt can be considered reasonable when it’s connected to evidence or an absence of evidence. Sympathies or prejudices are not reasonable grounds for doubt.

The Bottom Line

Reasonable doubt is an important legal standard that strives to prevent innocent people from getting convicted for a crime they didn’t commit. If it cannot be proved without a reasonable doubt that the defendant is guilty, then they should not be convicted of the crime as charged. source

Reasonable suspicion

Overview

Reasonable suspicion is a standard used in criminal procedure. Reasonable suspicion is used in determining the legality of a police officer’s decision to perform a search.

When an officer stops someone to search the person, courts require that the officer has either a search warrant, probable cause to search, or a reasonable suspicion to search. In descending order of what gives an officer the broadest authority to perform a search, courts have found that the order is search warrant, probable cause, and then reasonable suspicion.

Reasonable Suspicion As Applied to a Stop & Frisk

In Terry v. Ohio 392 U.S. 1 (1968), the Supreme Court held that if a police officer believes that an individual has a weapon which poses a danger to the officer, the officer may stop that individual to search the individual for a weapon. The Court held that to determine whether the police officer acted reasonably in the stop, a court should not look at whether he has a hunch, but rather “to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”

In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), a Nevada state statute “requires a person detained by an officer [during a Terry stop] to identify himself” by providing his name. In Hiibel, the Supreme Court held that because the statute only asked for a name, not identification, and because it did “not alter the nature of the stop itself, changing neither its duration nor its location,” the statute “properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests.” Thus the Court held that the statute is constitutional. source

Probable Cause vs Reasonable suspicion

Definition of Probable Cause – Probable cause means that a reasonable person would believe that a crime was in the process of being committed, had been committed, or was going to be committed.

Legal Repercussions of Probable Cause – Probable cause is enough for a search or arrest warrant. It is also enough for a police officer to make an arrest if he sees a crime being committed.

Definition of Reasonable Suspicion – Reasonable suspicion has been defined by the United States Supreme Court as “the sort of common-sense conclusion about human behavior upon which practical people . . . are entitled to rely.” Further, it has defined reasonable suspicion as requiring only something more than an “unarticulated hunch.” It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion.

Reasonable suspicion means that any reasonable person would suspect that a crime was in the process of being committed, had been committed or was going to be committed very soon.

Legal Repercussions of Reasonable Suspicion – If an officer has reasonable suspicion in a situation, he may frisk or detain the suspect briefly. Reasonable suspicion does not allow for the searching of a person or a vehicle unless the person happens to be on school property. Reasonable suspicion is not enough for an arrest or a search warrant.

Stop and Frisk – In Terry v. Ohio, 392 U.S. 1 (1968), the court recognized that a limited stop and frisk of an individual could be conducted without a warrant based on less than probable cause. The stop must be based on a reasonable, individualized suspicion based on articulable facts, and the frisk is limited to a pat-down for weapons. An anonymous tip that a person is carrying a gun is not, by itself, sufficient to justify a stop and frisk. Florida v. J.L., 529 U.S. 266 (2000).

Florida v. Bostick 501 U.S. 429, 437 (1991) – A person’s refusal to cooperate is not sufficient for reasonable suspicion.

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). – A person’s flight in a high crime area after seeing police was sufficient for reasonable suspicion to stop and frisk.

The same requirement of founded suspicion for a “person” stop applies to stops of individual vehicles. United States v. Arvizu, 534 U.S. 266 (2002). The scope of the “frisk” for weapons during a vehicle stop may include areas of the vehicle in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032 (1983). The police may order passengers and the driver out of or into the vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408 (1997). The passengers may not be detained longer than it takes the driver to receive his citation. Once the driver is ready to leave, the passengers must be permitted to go as well. During a stop for traffic violations, the officers need not independently have reasonable suspicion that criminal activity is afoot to justify frisking passengers, but they must have reason to believe the passengers are armed and dangerous. Arizona v. Johnson, 129 S Court. 781, 784 (2009).

The Difference Between the Two – The terms probable cause and reasonable suspicion are often confused and misused. While both have to do with a police officer’s overall impression of a situation, the two terms have different repercussions on a person’s rights, the proper protocol and the outcome of the situation.

Reasonable suspicion is a step before probable cause. At the point of reasonable suspicion, it appears that a crime may have been committed. The situation escalates to probable cause when it becomes obvious that a crime has most likely been committed.

Probable Cause to Search
In order to obtain a search warrant, the court must consider whether based on the totality of the information there is a fair probability that contraband, evidence or a person will be found in a particular place. Illinois v. Gates, 462 U.S. 213 (1983).

Probable Cause to Arrest
In order to arrest a suspect the officer must have a good faith belief that a crime has been committed and the individual he is arresting committed the crime. In Maryland v. Pringle, 540 U.S. 366 (2003). In Pringle, an officer was permitted to arrest three individuals in a vehicle where marijuana was discovered. The court reasoned that, even though the officers did not have evidence that any one of the three occupants was responsible for the drugs, probable cause existed as to all of them because co-occupants of a vehicle are often engaged in a common enterprise and all three denied knowing anything about the drugs.

Texas – Goldberg v. State, 95 SW.3d 345 (Tex. App. 2002).

An arrest is proper when it is based upon article 14.03 (a)(1) of the Texas Code of Criminal Procedure, which permits a peace officer to arrest a person without a warrant if the person is found in a suspicious place and under circumstances that reasonably show that such person has been guilty of some felony or breach of the peace.

Facts: Mr. Goldberg was accused of entering a wig store, punching one attendant in the throat, and cutting the other attendant’s wrist and stabbing her when she attempted to call for help. The assailant quickly left the store. A witness in the parking lot followed the assailant to his vehicle. The witness provided police with a license plate number for the vehicle. The police traced the vehicle and located the defendant, the son of the owner of the vehicle. The police handcuffed Mr. Goldberg, performed a pat down and informed him of his rights. Mr. Goldberg stated he was willing to talk to the officers. He was later uncuffed.

The officer felt the hood of the vehicle and it was still warm. Mr. Goldberg denied driving the vehicle or knowledge of the crime. The officers also noticed a blood stain on Mr. Goldberg’s shirt and a red mark on his chest. Goldberg consented to a search of the house, his apartment and the vehicle. The officers found fibers matching the wigs at the wig shop. Mr. Goldberg claimed that the vehicle had been stolen several times but the person always returned the vehicle to the residence. Mr. Goldberg was taken to the police station and consented to a police interrogation. He later was released to his mother. Mr. Goldberg challenged the arrest as unlawful.

The court found that even if the detention rose to the level of an arrest when the defendant was transported to the police station it was proper. Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman v. State, 955 SW.2d at 87; Amores v. State, 816 SW.2d 407, 413 (Tex. Crim. App.1991). Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. Guzman, 955 SW.2d at 87. source

Principles of Probable Cause and Reasonable Suspicion

Although there is certainly more to probable cause and reasonable suspicion than just principles, it’s a good place to start, so that is where we will begin this four-part series. In part two, which begins on page 9, we will explain how officers can prove that the information they are relying upon to establish probable cause or reasonable suspicion was sufficiently reliable that is has significance. Then, in the Fall 2014 edition we will cover probable cause to arrest, including the various circumstances that officers and judges frequently consider in determining whether it exists. The series will conclude in the Winter 2015 edition with an discussion of how officers can determine whether they have probable cause to search.

It is ordinarily a bad idea to begin an article by admitting that the subjects to be discussed cannot be usefully defined. But when the subjects are probable cause and reasonable suspicion1, and when the readership is composed of people who have had some experience with them, it would be pointless to deny it. Consider that the Seventh Circuit once tried to provide a good legal definition but concluded that, when all is said and done, it just means having “a good reason to act.”2 Even the Supreme Court— whose many powers include defining legal terms— decided to pass on probable cause because, said the Court, it is “not a finely-tuned standard”3 and is actually an “elusive” and “somewhat abstract” concept.4 As for reasonable suspicion, the uncertainty is even worse. For instance, in United States v. Jones the First Circuit would only say that it “requires more than a naked hunch.”5

But this imprecision is actually a good thing because probable cause and reasonable suspicion are ultimately judgments based on common sense, not technical analysis. Granted, they are important judgments because they have serious repercussions. But they are fundamentally just rational assessments of the convincing force of information, which is something the human brain does all the time without consulting a rule book. So instead of being governed by a “neat set of rules,”6 these concepts mainly require that officers understand certain principles— principles that usually enable them to make these determinations with a fair degree of consistency and accuracy.

First, however, it is necessary to explain the basic difference between probable cause and reasonable suspicion, as these terms will be used throughout this series. Both are essentially judgments as to the existence and importance of evidence. But they differ as to the level of proof that is required. In particular, probable cause requires evidence of higher quality and quantity than reasonable suspicion because it permits officers to take actions that are more intrusive, such as arresting people and searching things. In contrast, reasonable suspicion is the standard for lesser intrusions, such as detentions and pat searches. As the 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 quality 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.7

What Probability is Required?

When people start to learn about probable cause or reasonable suspicion, they usually want a number: What probability percentage is required?8 Is it 80%? 60%? 50%? Lower than 50? No one really knows, which might seem strange because, even in a relatively trivial venture such as sports betting, people would not participate unless they had some idea of the odds.

Nevertheless, the Supreme Court has refused to assign a probability percentage to these concepts because it views them as nontechnical standards based on common sense, not mathematical precision.9 “The probable cause standard,” said the Court, “is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances.”10 Similarly, the Tenth Circuit observed, “Besides the difficulty of agreeing on a single number, such an enterprise would, among other things, risk diminishing the role of judgment based on situation-sense.”11 Still, based on inklings from the United States Supreme Court, it is possible to provide at least a ballpark probability percentage for probable cause.

Reasonable suspicion, on the other hand, remains an enigma.

Probable cause

Many people assume that probable cause requires at least a 51% probability because anything less would not be “probable.” While this is technically true, the Supreme Court has ruled that, in the context of probable cause, the word “probable” has a somewhat different meaning. Specifically, it has said that probable cause requires neither a preponderance of the evidence nor “any showing that such belief be correct or more likely true than false,”12 and that it requires only a “fair” probability, not a statistical probability.13 Thus, it is apparent that probable cause requires something less than a 50% chance.14 How much less? Although no court has tried to figure it out, we suspect it is not much lower than 50%.

Reasonable suspicion

As noted, the required probability percentage for reasonable suspicion is a mystery. Although the Supreme Court has said that it requires “considerably less [proof] than preponderance of the evidence”15 (which means “considerably less” than a 50.1% chance), this is unhelpful because a meager 1% chance is “considerably less” than 51.1% but no one seriously thinks that would be enough. Equally unhelpful is the Supreme Court’s observation that, while probable cause requires a “fair probability,” reasonable suspicion requires only a “moderate” probability.16 What is the difference between a “moderate” and “fair” probability? Again, nobody knows. What we do know is that the facts need not rise to the level that they “rule out the possibility of innocent conduct.”17 As the Court of Appeal explained, “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity.”18 We also know that reasonable suspicion may exist if the circumstances were merely indicative of criminal activity. In fact, the California Supreme Court has said that if the circumstances are consistent with criminal activity, they “demand“ an investigation.”19

Basic Principles

Having given up on a mathematical solution to the problem, we must rely on certain basic principles. And the most basic principle is this: Neither probable cause nor reasonable suspicion can exist unless officers can cite “specific and articulable facts” that support their judgment.20 This demand for specificity is so important that the Supreme Court called it the “central teaching of this Court’s Fourth Amendment jurisprudence.” 21 The question, then, is this: How can officers determine whether their “specific and articulable” facts are sufficient to establish probable cause or reasonable suspicion? That is the question we will address in the remainder of this article.

Totality of the circumstances

Almost as central as the need for facts is the requirement that, in determining whether officers have probable cause and reasonable suspicion, the courts will consider the totality of circumstances. This is significant because it is exactly the opposite of how some courts did things many years ago. That is, they would utilize a “divide-and-conquer”22 approach which meant subjecting each fact to a meticulous evaluation, then frequently ruling that the officers lacked probable cause or reasonable suspicion because none of the individual facts were compelling. This practice officially ended in 1983 when, in the landmark decision in Illinois v. Gates, the Supreme Court announced that probable cause and reasonable suspicion must be based on an assessment of the convincing force of the officers’ information as a whole. “We must be mindful,” said the Fifth Circuit, “that probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the laminated total.23 Thus, in People v. McFadin the court responded to the defendant’s “divide-and-conquer” strategy by utilizing the following analogy:

Defendant would apply the axiom that a chain is no stronger than its weakest link. Here, however, there are strands which have been spun into a rope. Although each alone may have insufficient strength, and some strands may be slightly frayed, the test is whether when spun together they will serve to carry the load of upholding [the probable cause determination].24

Here is an example of how the “totality of the circumstances” test works and why it is so important. In Maryland v. Pringle 25 an officer made a traffic stop on a car occupied by three men and, in the course of the stop, saw some things that caused him to suspect that the men were drug dealers. One of those things was a wad of cash ($763) that the officer had seen in the glove box. He then conducted a search of the vehicle and found cocaine. But a Maryland appellate court ruled the search was unlawful because the presence of money is “innocuous.” The Supreme Court reversed, saying the Maryland court’s “consideration of the money in isolation, rather than as a factor in the totality of the circumstances, is mistaken.”

Common sense

Not only did the Court in Gates rule that probable cause must be based on a consideration of the totality of circumstances, it ruled that the significance of the circumstances must be evaluated by applying common sense, not hypertechnical analysis. In other words, the circumstances must be “viewed from the standpoint of an objectively reasonable police officer.”26 As the Court explained:

Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a practical, nontechnical conception. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.27

Legal, but suspicious, activities

It follows from the principles discussed so far that it is significant that officers saw the suspect do something that, while not illegal, was suspicious in light of other circumstances.28 As the Supreme Court explained, the distinction between criminal and noncriminal conduct “cannot rigidly control” because probable cause and reasonable suspicion “are fluid concepts that take their substantive content from the particular contexts in which they are being assessed.”29 For example, in Massachusetts v. Upton the state court ruled that probable cause could not have existed because the evidence “related to innocent, nonsuspicious conduct or related to an event that took place in public.” Acknowledging that no single piece of evidence was conclusive, the Supreme Court reversed, saying the “pieces fit neatly together.”30 Similarly, the Court of Appeal noted that seeing a man running down a street “is indistinguishable from the action of a citizen engaged in a program of physical fitness.” But it becomes “highly suspicious” when it is “viewed in context of immediately preceding gunshots.”31

Another example of how noncriminal activities can become highly suspicious is found in Illinois v. Gates.32 It started with an anonymous letter to a police department saying that a local resident, Lance Gates, was a drug trafficker; and it explained in some detail the procedure that Gates and his wife, Sue, would follow in obtaining drugs in Florida. DEA agents followed both of them (Gates flew, Sue drove) and both generally followed the procedure described by the letter writer. This information led to a search warrant and Gates’ arrest. On appeal, he argued that the warrant was not supported by probable cause because the agents did not see him or his wife do anything illegal. It didn’t matter, said the Supreme Court, because the “seemingly innocent activity became suspicious in light of the initial tip.”

Multiple incriminating circumstances

Here is a principle that, while critically important, is often overlooked or underappreciated: The chances of having probable cause or reasonable suspicion increase exponentially with each additional piece of independent incriminating evidence that comes to light. This is because of the unlikelihood that each “coincidence of information”33 could exist in the absence of a fair or moderate possibility of guilt.

For example, in a Kings County murder case probable cause to arrest the defendant was based on the following: When the crime occurred, a car similar to defendant’s “uniquely painted” vehicle had been seen in a rural area, two-tenths of a mile from where a 15-year old girl had been abducted. In addition, an officer saw “bootprints and tire prints” nearby and “he compared them visually with boots seen in, and the treads of the tires of, defendant’s car, which he knew was parked in front of defendant’s hotel and registered to defendant. He saw the condition of the victim’s body; he knew that defendant had a prior record of conviction for forcible rape. He also knew of the victim’s occasional employment as a babysitter at the farm where defendant worked.” In ruling that these pieces of independent incriminating evidence constituted probable cause, the California Supreme Court said:

The probability of the independent concurrence of these factors in the absence of the guilt of defendant was slim enough to render suspicion of defendant reasonable and probable.34

Similarly, in a case from Santa Clara County,35 a man named Anthony Spears, who worked at a Chili’s in Cupertino, arrived at the restaurant one morning and “discovered” that the manager had been shot and killed before the restaurant had opened for the day. In the course of their investigation, sheriff ’s deputies learned that Spears had left home shortly before the murder even though it was his day off, there were no signs of forced entry, and that Marlboro cigarette butts (the same brand that Spears smoked) had been found in an alcove near the manager’s office. Moreover, Spears had given conflicting statements about his whereabouts when the murder occurred; and, after “discovering” the manager’s body, he told other employees that the manager had been “shot” but the cause of death was not apparent from the condition of the body.

Based on this evidence, detectives obtained a warrant to search Spears’ apartment and the search netted, among other things, “large amounts of bloodstained cash.” On appeal, Spears argued that the detectives lacked probable cause for the warrant but the court disagreed, saying, “[W]e believe that all of the factors, considered in their totality, supplied a degree of suspicion sufficient to support the magistrate’s finding of probable cause.”

While this principle also applies to reasonable suspicion to detain, a lesser amount of independent incriminating evidence will be required. The following are examples from various cases:

The suspect’s physical description and his clothing were similar to that of the perpetrator.36
In addition to a description similarity, the suspect was in a car similar in appearance to that of the perpetrator.37
The suspect resembled the perpetrator and he was in the company of a person who was positively identified as one of two men who had just committed the crime.38
The suspect resembled the perpetrator plus he was detained shortly after the crime occurred at the location where the perpetrator was last seen or on a logical escape route.39
In addition to resembling the perpetrator, the suspect did something that tended to demonstrate consciousness of guilt; e.g., he lied to officers or made inconsistent statements, he made a furtive gesture, he reacted unusually to the officer’s presence, he attempting to elude officers.40
The suspect resembled the perpetrator and possessed fruits of the crime.41
The number of suspects in the vehicle corresponded with the number of people who had just committed the crime, plus they were similar in age, sex, and nationality.42

Unique circumstances

The odds of having reasonable suspicion or probable cause also increase dramatically if the matching or similar characteristics were unusual or distinctive. As the Court of Appeal observed, “Uniqueness of the points of comparison must also be considered in testing whether the description would be inapplicable to a great many others.”43

For example, the courts have taken note of the following unique circumstances:

The suspect and perpetrator both had bandages on their left hands;44
The suspect and perpetrator were in vehicles of the same make and model with tinted windows and a dark-colored top with light-colored side.45 Conversely, the Second Circuit noted that “when the points of similarity are less unique or distinctive, more similarities are required before the probability of identity between the two becomes convincing.”46

Inferences based on circumstantial evidence As noted earlier, probable cause and reasonable suspicion must be based on “specific and articulable facts.” However, the courts will also consider an officer’s inferences as to the meaning or significance of the facts so long as the inference appeared to be reasonable. It is especially relevant that the inference was based on the officer’s training and experience.47 In the words of the Supreme Court, “The evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”48 Or, as the Court explained in United States v. Arvizu:

The process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.49

For example, in People v. Soun 50 the defendant and three other men killed the owner of a video store in San Jose during a botched robbery. The men were all described as Asian, but witnesses provided conflicting descriptions of the getaway car. Some said it was a two-door Japanese car, but one said it was a Volvo “or that type of car.” Two of the witnesses provided a partial license plate number. One said he thought it began with 1RCS, possibly 1RCS525 or 1RCS583. The other said he thought it was 1RC(?)538.

A San Jose PD officer who was monitoring these developments at the station made two inferences:

(1) the actual license plate probably began with 1RCS, and (2) the last three numbers included a 5 and an 8. So he started running these combinations through DMV until he got a hit on 1RCS558, a 1981 Toyota registered in Oakland. Because the car was last seen heading toward Oakland, officers notified OPD and, the next day, OPD officers stopped the car and eventually arrested the occupants for the murder. This, in turn, resulted in the seizure of the murder weapon. On appeal, one of the occupants, Soun, argued that the weapon should have been suppressed because the detention was based on nothing more than “hunch and supposition.” On the contrary, said the court, what Soun labeled “hunch and supposition” was actually “intelligent and resourceful police work.”

Similarly, in People v. Carrington 51 the California Supreme Court ruled that police in Los Altos reasonably inferred that two commercial burglaries were committed by the same person based on the following: “the two businesses were located in close proximity to each other, both businesses were burglarized on or about the same date, and in both burglaries blank checks were stolen.”

Hunches and unsupported conclusions

It is well known that hunches play an important role in solving crimes. “A hunch,” said the Ninth Circuit, “may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction.”52 Still, hunches are absolutely irrelevant in determining the existence of probable cause or reasonable suspicion. In other words, a hunch “is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.”53

The same is true of unsupported conclusions.54 For example, in ruling that a search warrant affidavit failed to establish probable cause, the court in U.S. v. Underwood 55 noted that much of the affidavit was “made up of conclusory allegations” that were “entirely unsupported by facts.” Two of these allegation were that officers had made “other seizures” and had “intercepted conversations” that tended to prove the defendant was a drug trafficker. “[T]hese vague explanations,” said the court, “add little if any support because they do not include underlying facts.”

Information known to other officers

Information is ordinarily irrelevant unless it had been communicated to the officer who acted on it; i.e., the officer who made the detention, arrest, or search, or the officer who applied for the search or arrest warrant.56 To put it another way, a search or seizure made without sufficient justification cannot be rehabilitated in court by showing that it would have been justified if the officer had been aware of information possessed by a colleague. As the California Supreme Court explained, “The question of the reasonableness of the officers’ conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made.”57

There is, however, an exception to this rule known as the “official channels rule” by which officers may detain, arrest, or sometimes search a suspect based solely on an official request to do so from another officer or agency. Under this rule, officers may also act based on information transmitted via a law enforcement database, such as NCIC and CLETS.58

Although the officers who act upon such transmissions are seldom aware of many, if any, of the facts known to the originating officer, this does not matter because, as the U.S. Supreme Court pointed out, “[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.”59

For example, in U.S. v. Lyons 60 state troopers in Michigan stopped and searched the defendant’s car based on a tip from DEA agents that the driver might be transporting drugs. On appeal, Lyons argued that the search was unlawful because the troopers had no information as to why she was a suspected of carrying drugs. But the court responded “it is immaterial that the troopers were unaware of all the specific facts that supported the DEA’s reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported).”

Note that, although officers “are entitled to presume the accuracy of information furnished to them by other law enforcement personnel,”61 the officers who disseminated the information may later be required to prove in court that they had received such information and that they reasonably believed it was reliable.62

Information inadmissible in court

In determining whether probable cause or reasonable suspicion exist, officers may consider both hearsay and privileged communications.63 For example, although a victim’s identification of the perpetrator might constitute inadmissible hearsay or fall within the marital privilege, officers may rely on it unless they had reason to believe it was false. As the Court of Appeal observed, “The United States Supreme Court has consistently held that hearsay information will support issuance of a search warrant…. Indeed, the usual search warrant, based on a reliable police informer’s or citizen-informant’s information, is necessarily founded upon hearsay.”64 On the other hand, information may not be considered if it was inadmissible because it was obtained in violation of the suspect’s constitutional rights; e.g., an illegal search or seizure.65

Mistakes of fact and law

If probable cause was based on information that was subsequently determined to be inaccurate or false, the information may nevertheless be considered if the officers reasonably believed it was true. As the Court of Appeal put it, “If the officer’s belief is reasonable, it matters not that it turns out to be mistaken.”66 Or, in the words of the Supreme Court, “[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government is not that they always be correct, but that they always be reasonable.”67

The courts are not, however, so forgiving with mistakes of law. This is because officers are expected to know the laws they enforce and the laws that govern criminal investigations. Consequently, information will not be considered if it resulted from such a mistake, even if the mistake was made in good faith.68 As the California Supreme Court explained, “Courts on strong policy grounds have generally refused to excuse a police officer’s mistake of law.”69 Or, as the Ninth Circuit put it, “If an officer simply does not know the law and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable.”70

References

Ornelas v. United States (1996) 517 U.S. 690, 695.
Hanson v. Dane County (7th Cir. 2010) 608 F.3d 335. 338.
Ornelas v. United States (1996) 517 U.S. 690, 695.
United States v. Arvizu (2002) 534 U.S. 266, 274 [“abstract”]; United States v. Cortez (1981) 449 U.S. 411, 417 [“elusive”].
U.S. v. Jones (1st Cir. 2012) 700 F.3d 615, 621.
See United States v. Sokolow (1989) 490 U.S. 1, 7; United States v. Arvizu (2002) 534 U.S. 266, 274; Ker v. California (1963) 374 U.S. 23, 33; In re Rafael V. (1982) 132 Cal.App.3d 977, 982; In re Louis F. (1978) 85 Cal.App.3d 611, 616.
Alabama v. White (1990) 496 U.S. 325, 330.
See Illinois v. Gates (1983) 462 U.S. 213, 231 “In dealing with probable cause, as the very name implies, we deal with probabilities.”].
See Texas v. Brown (1983) 460 U.S. 730, 742; Illinois v. Gates (1983) 462 U.S. 213, 232.
See Maryland v. Pringle (2003) 540 U.S. 366, 371.
U.S. v. Ludwig (10th Cir. 2011) 641 F.3d 1243, 1251.
Texas v. Brown (1983) 460 U.S. 730, 742. Also see People v. Carrington (2009) 47 Cal.4th 145, 163.
See Illinois v. Gates (1983) 462 U.S. 213, 238; Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
See U.S. v. Melvin (1st Cir. 1979) 596 F.2d 492, 495 [“appellant reads the phrase ‘probable cause’ with emphasis on the word ‘probable’ and would define it mathematically to mean more likely than not or by a preponderance of the evidence. This reading is incorrect.”]; People v. Alcorn (1993) 15 Cal.App.4th 652, 655; U.S. v. Garcia (5th Cir. 1999) 179 F.3d 265, 269.
Illinois v. Wardlow (2000) 528 U.S. 119, 123. Also see United States v. Arvizu (2002) 534 U.S. 266, 274.
Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
United States v. Arvizu (2002) 534 U.S. 266, 277.
People v. Brown (1990) 216 Cal.App.3d 1442, 1449 [edited].
In re Tony C. (1978) 21 Cal.3d 888, 894. Also see United States v. Arvizu (2002) 534 U.S. 266, 277.
U.S. v. Pontoo (1st Cir. 2011) 666 F.3d 20, 27. Also see Illinois v. Gates (1983) 462 U.S. 213, 239.
Terry v. Ohio (1968) 392 U.S. 1, 21, fn.18.
United States v. Arvizu (2002) 534 U.S. 266, 274.
U.S. v. Edwards (5th Cir. 1978) 577 F.2d 883, 895. Also see U.S. v. Valdes-Vega (9th Cir. 2013) 739 F.3d 1074.
(1982) 127 Cal.App.3d 751, 767.
(2003) 540 U.S. 366. Also see Massachusetts v. Upton (1984) 466 U.S. 727, 734 [“The informant’s story and the surrounding facts possessed an internal coherence that gave weight to the whole.”].
Ornelas v. United States (1996) 517 U.S. 690, 696.
Illinois v. Gates (1983) 462 U.S. 213, 231. Also see United States v. Cortez (1981) 449 U.S. 411, 418.
See United States v. Sokolow (1989) 490 U.S. 1, 9 [“Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”]; People v. Glenos (1992) 7 Cal.App.4th 1201, 1207; U.S. v. Ruidiaz (1st Cir. 2008) 529 F.3d 25, 30 [“a fact that is innocuous in itself may in combination with other innocuous facts take on added significance”].
Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
(1984) 466 U.S. 727, 731-32.
People v. Juarez (1973) 35 Cal.App.3d 631, 636.
(1983) 462 U.S. 213.
Ker v. California (1963) 374 U.S. 23, 26. Also see People v. Pranke (1970) 12 Cal.App.3d 935, 940 [“when such remarkable coincidences coalesce, they are sufficient to warrant a prudent man in believing that the defendant has committed an offense”]; U.S.v. Abdus-Price (D.C. Cir. 2008) 518 F.3d 926, 930 [a “confluence” of factors]; U.S. v. Carney (6th Cir. 2012) 675 F.3d 1007 [“interweaving connections”].
People v. Hillery (1967) 65 Cal.2d 795, 804.
People v. Spears (1991) 228 Cal.App.3d 1.
See Chambers v. Maroney (1970) 399 U.S. 42, 46-47; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Anthony (1970)7 Cal.App.3d 751, 763.
See People v. Hill (2001) 89 Cal.App.4th 48, 55; People v. Soun (1995) 34 Cal.App.4th 1499, 1524-25; People v. Watson (1970)12 Cal.App.3d 130, 134-35; People v. Davis (1969) 2 Cal.App.3d 230, 237; People v. Huff (1978) 83 Cal.App.3d 549, 557; In re Dung T. (1984) 160 Cal.App.3d 697, 712-13; People v. Flores (1974) 12 Cal.3d 85, 91; People v. Jones (1981) 126 Cal.App.3d 308, 313-14; People v. Moore (1975) 51 Cal.App.3d 610, 617; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Orozco (1981) 114 Cal.App.3d 435, 445.
See People v. Bowen (1987) 195 Cal.App.3d 269, 274; In re Lynette G. (1976) 54 CA3 1087, 1092; In re Carlos M. (1990) 220 CA3 372, 382 [“[W]here, as here, a crime is known to have involved multiple suspects, some of whom are specifically described and others whose descriptions are generalized, a defendant’s proximity to a specifically described suspect, shortly after and near the site of the crime, provides reasonable grounds to detain for investigation a defendant who otherwise fits certain general descriptions.”].
People v. Atmore (1970) 13 Cal.App.3d 244, 246.
People v. Fields (1984) 159 Cal.App.3d 555, 564; People v. Turner (1994) 8 Cal.4th 137, 186; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005.
People v. Hagen (1970) 6 Cal.App.3d 35, 43; People v. Morgan (1989) 207 Cal.App.3d 1384, 1389; People v. Anthony (1970) 7Cal.App.3d 751, 763; People v. Rico (1979) 97 Cal.App.3d 124, 129.
People v. Soun (1995) 34 Cal.App.4th 1499, 1524. Also see People v. Brian A. (1985) 173 Cal.App.3d 1168, 1174 [“Where there were two perpetrators and an officer stops two suspects who match the descriptions he has been given, there is much greater basis to find sufficient probable cause for arrest. The probability of there being other groups of persons with the same combination of physical characteristics, clothing, and trappings is very slight.”]; People v. Britton (2001) 91 Cal.App.4th 1112, 1118-19 [“This evasive conduct by two people instead of just one person, we believe, bolsters the reasonableness of the suspicion”]. Compare In re Dung T. (1984) 160 Cal.App.3d 697, 713.
In re Brian A. (1985) 173 Cal.App.3d 1168, 1174
People v. Joines (1970) 11 Cal.App.3d 259, 264. Also see P v. Hill (2001) 89 CA4 48, 55 [medallion and scar].
U.S. v. Abdus-Price (D.C. Cir. 2008) 518 F.3d 926, 930-31. Also see P v. Orozco (1981) 114 CA3 435, 440 [a “cream, vinyl top over a cream colored vehicle”]; P v. Flores (1974) 12 C3 85, 92 [a “unique” paint job].
U.S. v. Jackson (2nd Cir. 2004) 368 F.3d 59, 64.
See United States v. Cortez (1981) 449 U.S. 411, 418; People v. Ledesma (2003) 106 Cal.App.4th 857, 866; In re Frank V. (1991) 233 Cal.App.3d 1232, 1240-41; U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1105 [“An officer is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also be grounded in objective facts and be capable of rational explanation.”].
Illinois v. Gates (1983) 462 U.S. 213, 232.
(2002) 534 U.S. 266, 273.
(1995) 34 Cal.App.4th 1499. Also see Maryland v. Pringle (2003) 540 U.S. 366, 371-72 [it was reasonable to believe that all three occupants of a vehicle possessed five baggies of cocaine that were behind the back-seat armrest because they were stopped at 3:16 A.M., there was $763 in rolled-up cash in the glove box, and none of the men offered “any information with respect to the ownership of the cocaine or the money”]; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 712-13.
(2010) 47 Cal.4th 145.
U.S. v. Thomas (9th Cir. 2000) 211 F.3d 1186, 1192.
Ibid. Also see U.S. v. Cash (10th Cir. 2013) 733 F.3d 1264, 1274 [reasonable suspicion “must be based on something more than an inchoate and unparticularized suspicion or hunch”].
See Illinois v. Gates (1983) 462 U.S. 213, 239 [a “wholly conclusory statement” is irrelevant]; People v. Leonard (1996) 50 Cal.App.4th 878, 883 [“Warrants must be issued on the basis of facts, not beliefs or legal conclusions.”]; U.S. v. Garcia-Villalba (9th Cir. 2009) 585 F.3d 1223, 1234; Gentry v. Sevier (7th Cir. 2010) 597 F.3d 838, 845 [“The officer was acting solely upon a general report of a ‘suspicious person,’ which did not provide any articulable facts that would suggest the person was committing a crime or was armed.”].
(9th Cir. 2013) 725 F.3d 1076.
See Ker v. California (1963) 374 U.S. 23, 40, fn.12 [“It goes without saying that in determining the existence of probable cause we may concern ourselves only with what the officers had reason to believe at the time of their entry.” Edited.]; Maryland v. Garrison (1987) 480 U.S. 79, 85 [“But we must judge the constitutionality of [the officers’] conduct in light of the information available to them at the time they acted.”]; Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 222 [officer “had not been told that Harris and Ellis had identified the car from which shots were fired as a 1960 or 1961 Dodge.”]; People v. Adams (1985) 175 Cal.App.3d 855, 862 [“warrantless arrest or search cannot be justified by facts of which the officer was wholly unaware at the time”]; People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759. 766 [“The issue of probable cause depends on the facts known to the officer prior to the search.”]; John v. City of El Monte (9th Cir. 2008) 515 F.3d 936, 940 [“The determination whether there was probable cause is based upon the information the officer had at the time of making the arrest.”]; U.S. v. Ellis (7th Cir. 2007) 499 F.3d 686, 690 [“As there was no communication from Officers Chu and McNeil at the front door to [Officer] Lopez at the side door, it was improper to imputer their knowledge to Lopez.”].
People v. Gale (1973) 9 Cal.3d 788, 795.
See Whiteley v. Warden (1971) 401 U.S. 560, 568; People v. Soun (1995) 34 Cal.App.4th 1499, 1521; U.S. v. Ramirez (9th Cir. 2007) 473 F.3d 1026, 1037
United States v. Hensley (1985) 469 U.S. 221, 232.
(6th Cir. 2012) 687 F.3d 754, 768.
U.S. v. Lyons (6th Cir. 2012) 687 F.3d 754, 768.
See United States v. Hensley (1985) 469 U.S. 221, 232. Also see People v. Madden (1970) 2 Cal.3d 1017.
See United States v. Ventresca (1965) 380 U.S. 102, 108; People v. Navarro (2006) 138 Cal.App.4th 146, 147.
People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 472.
See Lozoya v. Superior Court (1987) 189 Cal.App.3d 1332, 1340; U.S. v. Barajas-Avalos (9th Cir. 2004) 377 F.3d 1040, 1054.
Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 134. Also see Hill v. California (1971) 401 U.S. 797, 802.
Illinois v. Rodriguez (1990) 497 U.S. 177, 185. Edited.
See People v. Reyes (2011) 196 Cal.App.4th 856, 863; People v. Cox (2008) 168 Cal.App.4th 702, 710.
People v. Teresinski (1982) 30 Cal.3d 822, 831.
U.S. v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 113
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We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

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We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

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Learn More About What is Obscene…. be careful about education it may enlighten you

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Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

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We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

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We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

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Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

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9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

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Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
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Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
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Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

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Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

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The PROPOSED Parental Rights Amendment
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The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Delaware v. Prouse – Police Cannot Just Stop Innocent People – 4th & 14th Amendment

The Truth News — Sat, 27 Aug 2022 23:03:58 +0000

Delaware v. Prouse – Police Cannot Just Stop Innocent People

Facts

A police officer stopped Prouse’s (defendant) car to check Prouse’s driver license and car registration. No policy or systematic roadblock required the officer to make the stop. Approaching the car, the officer smelled marijuana, saw marijuana in plain view, and seized it. Delaware (plaintiff) prosecuted Prouse for possessing illegal drugs. The trial court granted Prouse’s motion to suppress the seized marijuana. The state appealed to the Delaware Supreme Court, which affirmed the trial court’s ruling on Fourth Amendment grounds. The United States Supreme Court granted Delaware’s petition for certiorari. A Delaware patrolman stopped William Prouse’s car to make a routine check of his driver’s license and vehicle registration. The officer had not observed any traffic violation or suspicious conduct on the part of Prouse. After stopping the car, the officer uncovered marijuana. The marijuana was later used to indict Prouse.

Question

Did the officer’s search of Prouse’s automobile constitute an unreasonable search and seizure under the Fourth Amendment?

Rule of Law

The rule of law is the black letter law upon which the court rested its decision.

Issue

The issue section includes the dispositive legal issue in the case phrased as a question.

Holding and Reasoning (White, J.)

The holding and reasoning section includes:

A “yes” or “no” answer to the question framed in the issue section;
A summary of the majority or plurality opinion, using the CREAC method; and
The procedural disposition (e.g., reversed and remanded, affirmed, etc.).

Concurrence (Blackmun, J.)

The concurrence section is for members only and includes a summary of the concurring judge or justice’s opinion.

Dissent (Rehnquist, J.)

The dissent section is for members only and includes a summary of the dissenting judge or justice’s opinion.

Delaware v. Prouse, 440 U.S. 648 (1979)

Delaware v. Prouse, 440 U.S. 648, was a United States Supreme Court case in which the Court held that police may not stop motorists without any reasonable suspicion to suspect crime or illegal activity to check their driver’s license and auto registration.

U.S. Supreme Court

Delaware v. Prouse, 440 U.S. 648 (1979)

Delaware v. Prouse

No. 77-1571

Argued January 17, 1979

Decided March 27, 1979

440 U.S. 648

Syllabus

A patrolman in a police cruiser stopped an automobile occupied by respondent and seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent’s motion to suppress the marihuana, the patrolman testified that, prior to stopping the vehicle, he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver’s license and the car’s registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious, and therefore violative of the Fourth Amendment. The Delaware Supreme Court affirmed.

Held:

1. This Court has jurisdiction in this case even though the Delaware Supreme Court held that the stop at issue not only violated the Federal Constitution but also was impermissible under the Delaware Constitution. That court’s opinion shows that, even if the State Constitution would have provided an adequate basis for the judgment below, the court did not intend to rest its decision independently on the State Constitution, its holding instead depending upon its view of the reach of the Fourth and Fourteenth Amendments. Pp. 440 U. S. 651-653.

2. Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. Pp. 440 U. S. 653-663.

(a) Stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of the Fourth and Fourteenth Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. Pp. 440 U. S. 653-655.

Page 440 U. S. 649

(b) The State’s interest in discretionary spot checks as a means of ensuring the safety of its roadways does not outweigh the resulting intrusion on the privacy and security of the persons detained. Given the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents, cf. United States v. Brignoni-Ponce, 422 U. 3. 873; United States v. Martinez-Fuerte, 428 U. S. 543, the marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure at the unbridled discretion of law enforcement officials. Pp. 440 U. S. 655-661.

(c) An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. People are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalk; nor are they shorn of those interests when they step from the sidewalks into their automobiles. Pp. 440 U. S. 662-663.

(d) The holding in this case does not preclude Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. P. 440 U. S. 663.

382 A.2d 1359, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 440 U. S. 663. REHNQUIST, J., filed a dissenting opinion, post, p. 440 U. S. 664.

Page 440 U. S. 650

cited https://supreme.justia.com/cases/federal/us/440/648/

Can a Store Legally Check Your Bag or Make You Show a Receipt?

The Truth News — Mon, 22 Aug 2022 07:31:05 +0000

Can a Store Legally Check Your Bag or Make You Show a Receipt?

The last thing you want to hear while exiting a retailer is the familiar beep of the store anti-theft system. If you’re at a large retailer, you will likely be approached immediately by a greeter to check your receipt. But do you have to comply? We’ve got both the legal and practical answers you’re looking for.

“The short answer is no. At most retailers, an employee can’t force you to show them your receipt or allow them to search your bag.

What Folsom PD said: Sgt. Andrew Bates with the Folsom Police Department directed us to California Penal code 490.5, which states:

“(f) (1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.”

In short: “To answer your question,” Bates said. “A person would not have to stop unless the merchant had probable cause to believe the person had taken merchandise without paying.”

In certain circumstances, store employees are justified in holding you until the police arrive. Known as the Shopkeeper’s Privilege, the store employee can stop you from leaving if they believe that you shoplifted. In order to hold you, the employee must have probable cause to believe you are a shoplifter. This suspicion must be supported by specific facts. This could be anything from the employee witnessing you pocketing merchandise without paying and then leaving the store.

Whether you paid for your items with cash or a gift card, the potential hassle of complying with a door greeter’s request probably won’t outweigh the hassle of refusing. Sure, you have the right to refuse. But in most cases, flashing your receipt takes a matter of seconds.”

Is it Legal for Walmart to Check Receipts at the Door?

The short answer is no. At most retailers like Walmart, an employee can’t force you to show them your receipt or allow them to search your bag. And make no mistake: when a greeter is asking to check your receipt, he is actually asking for permission to search your bags or seize your person.

It’s not always a great idea to do something even though you have the right. In certain circumstances, store employees are justified in holding you until the police arrive. Known as the Shopkeeper’s Privilege, the store employee can stop you from leaving if they believe that you shoplifted. What’s more, you could be barred from the premises or lose your membership card if you fail to comply.

Despite that, it is worth knowing your rights in these situations. While there’s nothing stopping a door greeter from asking you to comply, your rights could be violated if they try and forcibly keep you from leaving.

Shopkeeper’s Privilege Explained

While the Shopkeeper’s Privilege gives the store the right to detain suspected shoplifters, it can’t be used with impunity. If the store employee doesn’t have any reason to believe you were shoplifting, it is illegal to restrain you.

The Shopkeeper’s privilege can only be used by a store employee, and it must be done on store grounds. Additionally, you can only be held using the Shopkeeper’s Privilege for a reasonable amount of time. This generally means until the police arrive.

In order to hold you, the employee must have probable cause to believe you are a shoplifter. This suspicion must be supported by specific facts. This could be anything from the employee witnessing you pocketing merchandise without paying and then leaving the store.

The risk of the Shopkeeper’s Privilege is that if an employee stops you without probable cause that you have shoplifted, they may be committing the crime of false imprisonment. And if door greet is randomly stopping you to check your receipt, they won’t have the probable cause necessary for the Shopkeeper’s Privilege. It is within your right to tell them no and go about your business. But is that in your best interest?

Is it Wal-Mart Policy to Check Your Receipt?

Yes, Wal-Mart has said that their policy is to check every receipt when possible. Of course, if you have ever been to Wal-Mart the chances are good that you left without anyone asking for a copy of your receipt. No matter what Wal-Mart officials say their formal policy is, in practice it is fairly uncommon for greeters to check receipts.

In most stores, greeters have the leeway to decide when to ask for a receipt or not. Often, they will only do so for big-ticket items like televisions or electronics. How often this occurs in a Wal-Mart store will largely depend on the attitude of the person tasked with checking those receipts. No matter how often they ask for receipts, greeters are prohibited from going any further than this request unless they have reason to believe a theft has occurred.

Other Consequences You Might Face

If you refuse to show your receipt, there is always the possibility that an untrained Walmart receipt checker tries to detain you anyway. And unless you are spoiling for a fight with some of the world’s largest retailers, the odds are good it won’t be worth your time. But there are other consequences you could face other than being falsely imprisoned, and there is little you can do about them.

First and foremost, stores like Walmart are private property. Sure, you have a right to refuse to show your receipt. But the store has the right to ban you from the premises. What’s more, some retailers like Costco require their cardmembers to comply with receipt checks as a part of the cardmember agreement. Does this mean you’ve waived your legal protection against false imprisonment? No. But if you don’t comply with their rules, you can expect to lose your Costco membership. Also remember: the police could always follow up after you leave. While unlikely, the police can charge you later if they decide a crime occurred. Clearing things up on the front end may work in your favor.

Should you show your receipt?

Still wondering “do I have to show my receipt at Walmart?” It’s probably a good idea. Whether you paid for your items with cash or a gift card, the potential hassle of complying with a door greeter’s request probably won’t outweigh the hassle of refusing. Sure, you have the right to refuse. But in most cases, flashing your receipt takes a matter of seconds.

Know Your Consumer Rights

Although Walmart may claim shopkeepers’ privilege to detain you, the retailer should ensure that they don’t infringe on your rights as a consumer. Some of the rights you can claim are:

You can only be detained for a short time – Walmart can only detain a suspected shoplifter for a short time until the police arrive. They should also allow you to leave immediately if they ascertain that you have not committed an offense
They cannot use unreasonable force or coercion – a Walmart employee is not allowed to force you to comply with their request. If an employee uses force to detain you, you may claim false imprisonment against the store, which is a civil violation
The retailer should present specific facts – Walmart should present specific facts to back their suspicion. Otherwise, they cannot hold you under the shopkeeper’s privilege law

What Happens if You Refuse to Show Your Receipt at Walmart?

There is no law requiring you to show your receipt at Walmart. However, declining to do so may give a Walmart associate / ANY STORE OWNER probable cause to detain you under Shopkeepers’ Privilege law. In some cases, you may also encounter an untrained Walmart employee who may forcibly detain you if you refuse to show your receipt.

Walmart associate / ANY STORE OWNER can also ban you from its premises if you refuse to show your receipt. This is unlike Costco, which requires its members to show their receipts on demand as part of their membership agreement. Since Walmart does not have such provisions, it can only ban you from its store

“Shopkeeper’s Privilege” and The Right to Detain in California

Under California law, the principle of shopkeeper’s privilege permits shopkeepers (or store owners or merchants) to detain a customer if they have probable cause that the person is guilty of shoplifting (per Penal Code 459.5).

Under the law, though, it is required that a store owner’s detention:

be for a reasonable time, and
used solely for the purpose of investigating the suspected shoplifting offense.

The shopkeeper’s privilege is authorized under California Penal Code 490.5 PC. This statute states:

“(f) (1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.”

Examples of when a merchant can legally detain a customer include:

Mike runs a sports shop and stops a customer after watching him put a mouth guard in his backpack.
Nia manages a clothing store and brings a shopper in a back room after he tried to leave the store without paying for a sweater.
Jose works at a convenience store and restrains a person that put a pack of gum in his pocket.

Please note that a shopkeeper can use force to detain a customer, provided that it is:

reasonable, and
non-deadly.

During a lawful detention, a merchant can:

examine any items a person tried to take, and
conduct a search.

The shopkeeper’s privilege is a valid legal defense to the crime of false imprisonment, charged under Penal Code 236. False imprisonment is a wobbler offense under California law. This means it can be charged as either a misdemeanor or a felony.

Please note that the shopkeeper’s privilege is not the same as a citizen’s arrest (as authorized by Penal Code 837). The latter is an arrest made by a citizen who has no official arrest authority because he is not a law enforcement personnel or a governmental agent.

1. What is the shopkeeper’s privilege?

Under California law, the “shopkeeper’s privilege law” says that shopkeepers, or store owners or merchants, may detain a customer if they have probable cause / reasonable grounds to believe that the shopper is guilty of shoplifting (per Penal Code 459.5).¹

Note though that this detention:

must be for a reasonable amount of time, and
is solely for the purpose of investigating the possible shoplifting crime.²

Whether or not a detainment is “reasonable” or for a reasonable period of time is a determination a judge makes based on all of the facts of a given case.³

Under Penal Code 490.5 PC, a shop owner or merchant is:

an owner or operator, or
the agent, employee, or officer of an owner or operator

of any store used for the purchase or sale of any personal property capable of manual delivery.⁴

2. Can a merchant use force in detaining a customer?

An owner has the legal right to use force in detaining an alleged shoplifter. The shopkeeper’s privilege allows a store owner to use a reasonable amount of nondeadly force on the detainee that is necessary to:

protect himself, and
prevent the escape from store property of the particular person being detained.⁵

Whether or not the amount of force used is “reasonable” is a determination a judge makes based on all of the facts of a given case.⁶

3. What may a store owner do in a detention?

A store owner can do two things in a shopkeeper detention. These are:

examine the items he suspects are stolen, and/or
conduct a search.

3.1. Examine items

During a detention, a merchant may examine any items that:

he has probable cause to believe were unlawfully taken, and
are in plain view.⁷

An owner is authorized to examine the items to determine who legally owns them.⁸

3.2. Conduct a search

Once detained, a merchant can ask a suspected shoplifter to hand over the item(s) he believes the shopper tried to steal.⁹

If the shopper refuses, the owner can conduct a limited and reasonable search in order to recover the items in question.¹⁰ But, the merchant cannot search the clothing of the person being detained.¹¹ He can only search that person’s:

packages,
shopping bags,
handbags, or
any other property in his immediate possession.¹²

Merchants do not need a search warrant since they are not peace officers. They are private citizens. But if merchants find stolen items, they can then call a law enforcement agency to come to the store to issue a citation or conduct an arrest.

4. What is shoplifting, per Penal Code 459.5?

In Penal Code 495.5, California law defines “shoplifting” as entering an open business, with the intent to steal merchandise worth $950 or less.¹³

In other words, shoplifting is entering an open business intending to commit the crime of petty theft.

The crime of shoplifting was created by the voter initiative Proposition 47 in 2014. Prior to the passage of Prop 47, the behavior that is now defined as shoplifting could have been charged instead as Penal Code 459 PC burglary.

For most defendants, shoplifting is charged as a misdemeanor. The potential penalties a California court can impose are:

up to six months in county jail, and/or
a fine of up to $1,000.¹⁴

5. Is shopkeeper’s privilege a defense to false imprisonment?

The shopkeeper’s privilege is a valid legal defense to the crime of false imprisonment.¹⁵

Penal Code 236 PC is the California statute that defines the crime of false imprisonment. Under this code section, false imprisonment is “the unlawful violation of the personal liberty of another.”¹⁶

The commission of the crime means that one person restrains, detains, or confines another person without his/her consent. The crime can be committed with or without force or violence.

California Penal Code 237 is the State’s statute that sets forth the penalties for false imprisonment. Under this section, false imprisonment is a type of wobbler offense, meaning that it can be punished as either a California misdemeanor or a felony. You can find out more information on the differences between a felony and a misdemeanor here.

If a misdemeanor, false imprisonment is punishable by:

a maximum fine of $1,000, and/or
a maximum jail term of one year.¹⁷

If a felony, a judge can sentence a guilty party to a county jail term of:

16 months,
two years, or
three years.¹⁸

6. Are there other defenses to false imprisonment?

There are three other common defenses to accusations of false imprisonment. These are:

an accused had the legal authority to restrain a person (e.g., the defendant was acting in his capacity as a police officer), so therefore the accused committed no criminal activity,
the alleged “victim” consented to the restraint or the detention, and
the defendant acted out of self-defense. (Note that a deadly weapon should not be used in self-defense unless it is in reasonable and proportional force to the aggressor.)

Another defense is that the police committed misconduct, such as coercing a confession of tampering with evidence. In these cases, the defense can ask the judge to disregard any evidence found through illegal means.

In any case, the district attorney has the burden to prove guilt beyond a reasonable doubt. If prosecutors lack sufficient evidence, then the criminal case should be dropped.

7. Is the shopkeeper’s privilege the same as a citizen’s arrest?

The privilege is not the same as a California citizen’s arrest.

A citizen’s arrest is an arrest made by a citizen who has no official arrest authority because he is not a law enforcement officer, police department, or a governmental agent.¹⁹

Penal Code 837 PC is the California statute that authorizes a citizen’s arrest in certain circumstances. These include when a perpetrator:

commits a misdemeanor in a citizen’s presence, and/or
commits a felony and a citizen has reasonable cause for believing the perpetrator committed it.²⁰

Legal References:

California Penal Code 490.5f1 PC. This code section states: “(f) (1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.” See also Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175; People of the State of California v. Zelinski (California Supreme Court, 1979), 24 Cal. 3d 357, 594 P.2d 1000; People v. Carter (Court of Appeals, 1981), 117 Cal. App. 3d 735.
California Penal Code 490.5 PC.
Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701.
California Penal Code 490.5g2 PC.
California Penal Code 490.5f2 PC.
Fermino v. Fedco, supra.
California Penal Code 490.5f2 PC.
See same.
California Penal Code 490.5f4 PC.
See same.
See same.
See same. Note that the Fourth Amendment of the U.S. Constitution – as well as Article 1 of the California Constitution – protects people from unreasonable searches and seizures from law enforcement, not non-police. Unless a “warrant exception” applies, police in the United States need an arrest warrant to make an arrest or a search warrant from a superior court / trial court judge to conduct a search as part of a criminal investigation. The warrant affidavit by the officer (affiant) is made under penalty of perjury. To be issued by order of the court, warrants must detail the places and items to be searched with reasonable particularity, and they must indicate the factual basis for the search. Search warrants usually must be executed within a limited time frame, usually a 10 day period; a search warrant may only be executed between 7AM and 10PM unless the judge finds good cause to execute it at any time of the day. (Also see Evidence Code 1560 re. business records and related paraphernalia and PC 1524.3 re. service providers.)
California Penal Code 495.5 PC.
See same.
Fermino v. Fedco, Inc., supra.
California Penal Code 236 PC.
California Penal Code 237 PC.
See same.
California Penal Code section 837 PC.
See same.

Shopkeeper’s privilege

Shopkeeper’s privilege is a law recognized in the United States under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.^[1]

Limits

The privilege to detain, although recognized in many jurisdictions, is not as broad as a police officer’s privilege to arrest.^[2] If the shopkeepers exceed the bounds of this privilege and make an arrest, the lawfulness of their action will be determined by the jurisdiction’s rules governing arrest by a private citizen. The shopkeepers’ privilege is for the purpose of investigation only; if, after reasonable detention and investigation, the shopkeepers mistakenly conclude that the suspects are guilty and have them arrested, the shopkeepers may become liable for these acts just as they would have been had they committed the acts without undertaking a prior detention and investigation.^[3] Statutes in many states have modified and in some cases broadened the common law privilege,^[4] for example, by expressly permitting detention of the suspect until the police arrive.^[5] In other cases, case precedent has provided shopkeepers with similar tools.^[6] The practical effect of these extensions is to give the shopkeeper the same privilege as a police officer to make an arrest on reasonable grounds.^[7]

Rationale

This privilege has been justified by the practical need for some degree of protection for shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper would be faced with the dilemma of either allowing suspects to leave without challenge or acting upon his/her suspicion and risking a false arrest.^[8]

The privilege for the most part is to be able to return the stolen goods by determining ownership. The shopkeeper may not force a confession. The shopkeeper’s privilege does not include the power of search.^[9] Some courts, however, have expanded this original common law privilege to also include the detention of criminal trespassers: “[t]he detention and removal of a criminal trespasser is an essential power of any shopkeeper or other property owner[.]”^[10]

Requisite conditions

In seeking to avail themself of the shopkeeper’s privilege, the proprietor or agent thereof must ensure:

The investigation is conducted near or on the premises; the detention itself should be effected either on the store premises or in the immediate vicinity thereof. The privilege likely would not apply to after-the-fact questioning of a suspected thief who had left the store’s property. While the common law does permit the owner of goods acting on fresh pursuit to use reasonable force to recapture his or her goods from one who actually took them wrongfully, in doing so the property owner acts at his or her own peril.^[11] Moreover, the investigation must be to determine ownership of the property, not to force a confession.^[12]
The shopkeeper has reasonable grounds to suspect the particular person detained is shoplifting.
Only reasonable, nondeadly force is used to effect the detention. Such force being justified when the suspect is in immediate flight or violently resists detention.^[8]
The detention itself lasts only the time necessary to make a reasonable investigation of the facts. Fifteen minutes may be too long where all that is necessary is to ask the cashier whether the detainee has paid.^[8]

In cases where a shopkeeper fails to satisfy the aforementioned requisite conditions, he or she loses the privilege and may face liability under local criminal statutes and civil torts.^[4] However, so long as these conditions are established, the shopkeeper is immune from liability for false arrest, battery, etc., even when it is discovered after the investigation that the person detained was innocent of any wrongdoing.^[13]

Statutory analogs

The common law shopkeeper’s privilege has been superseded in most states by so-called shoplifting statutes, or merchant’s statutes, that allow merchants, their employees, and their agents to detain suspected shoplifters for: the investigation of merchandise or property ownership, the recovery of unpurchased merchandise or property, and the summoning of a police officer.^[14]

References

^ See § 22, at 142, Prosser, William Lloyd (1984). Prosser and Keeton on the law of torts (5 ed.). West Publishing Co. ISBN 0314748806. Retrieved 6 November 2017.
^ “Cervantez v. J.C. Penney Co., 595 P.2d 975, 982 & n.5 (Cal. 1979)”. Google Scholar. Retrieved 6 November 2017.
^ “The Protection and Recapture of Merchandise from Shoplifters”. Northwestern University Law Review. 47: 90. 1952. Retrieved 6 November 2017.
^ Jump up to:^a ^b Larson, Aaron (12 August 2017). “False Imprisonment and Unlawful Detention”. ExpertLaw. Retrieved 6 November 2017.
^ “Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871, 876 (N.Y. 1972)”. Google Scholar. Retrieved 6 November 2017.
^ “Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539 (Sup. Ct., Tex., 1998)”. Google Scholar. Retrieved 6 November 2017.
^ “People v. Jones, 393 N.E.2d 443, 445 (N.Y. 1979)”. Google Scholar. Retrieved 6 November 2017.; “State v. Hughes, 598 N.E.2d 916, 918 (Ohio C.P. 1992)”. Google Scholar. Retrieved 6 November 2017.
^ Jump up to:^a ^b ^c See § 120A Restatement (second) of Torts. American Law Institute. 1965. ISBN 0314012710. Retrieved 6 November 2017.
^ William L. Prosser, Proceedings of the 34th Annual Meeting of The American Law Institute, 1957 A.L.I. PROC. 283 (remarks of Mr. William L. Prosser, Reporter)
^ “Durante v. Fairlane Town Ctr., No. 05-1113, 201 F. App’x 338, 342 (6th Cir. Oct. 18, 2006) (unpublished)” (PDF). United States Court of Appeals for the 6th Circuit. Retrieved 6 November 2017.
^ See § 101, 103, Restatement (second) of Torts. American Law Institute. 1965. ISBN 0314012710. Retrieved 6 November 2017.
^ “Moffatt v. Buffums’, Inc., 69 P.2d 424 (Cal. Dist. Ct. App. 1937)”. Google Scholar. Retrieved 6 November 2017.
^ Christman, Steven M.; Mark, Jillian M. (19 May 2014). “Guidelines on Dealing With Suspected Shoplifters”. New York Law Journal. Retrieved 6 November 2017.
^ Robert A. Brazener, Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 A.L.R. 3d 998 (1973)

source source source source source source

Albright v. Oliver – Pretrial Rights – 14th Amendment

The Truth News — Fri, 08 Jul 2022 03:04:59 +0000

Albright v. Oliver – 14th Amendment

Albright claimed that Oliver violated his Fourteenth Amendment substantive due process right by prosecuting him without probable cause

No. The Court ruled that Section 1983 relief for prosecution without probable cause is only valid if the prosecuted party claims Fourth Amendment (pretrial rights) violations. In a 7-2 decision authored by Chief Justice William Rehnquist, the Courtt reaffirmed its commitment not to extend substantive due process indefinitely and held that substantive due process does not guarantee non-interference by criminal investigations.

Facts of the case

Illinois police obtained a warrant to arrest Kevin Albright after he was seen selling a substance which look liked an illegal drug. Upon hearing of the warrant, Albright surrendered to police detective Roger Oliver. A trial court dismissed the charge because it did not state an offense under Illinois law.

Albright claimed that Oliver violated his Fourteenth Amendment substantive due process right by prosecuting him without probable cause. He filed suit against Oliver under 42 U.S.C. 1983, which provides relief to those deprived of civil rights. The federal District Court dismissed the suit because it did not state a claim under Section 1983. The U.S. Court of Appeals for the Seventh Circuit affirmed, holding that relief provided by Section 1983 for prosecution without probable cause is valid only if the prosecution caused a consequence such as loss of employment or incarceration.

Question

Can a citizen prosecuted without probable cause obtain relief under 42 U.S.C. 1983 for the deprivation of substantive due process rights?

Conclusion

Sort:

by seniority
by ideology

7–2 DECISION
PLURALITY OPINION BY WILLIAM H. REHNQUIST

Blackmun

Rehnquist

Stevens

O’Connor

Scalia

Kennedy

Souter

Thomas

Ginsburg

cited https://www.oyez.org/cases/1993/92-833

probable cause Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

What is Probable Cause? and.. How is Probable Cause Established?

What is Probable Cause? and.. How is Probable Cause Established?

Probable Cause

Probable Cause: Definition, Legal Requirements

What Is Probable Cause?

KEY TAKEAWAYS

Understanding Probable Cause

What is malicious prosecution California?

CACI No. 1501. Wrongful Use of Civil Proceedings

“The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action.” Pace v Hillcrest Motor Co. (1980) 101 CA3d 476, 478.

CA Penal Code § 170 (2022) – Misuse of the Warrant System – Crimes Against Public Justice

CA Penal Code § 170 (2022) click here

Penal Code § 170 . Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor.

The Probable Cause Requirement

Amdt4.5.3 Probable Cause Requirement

Footnotes

read ALL OF THE FOURTH AMENDMENT BELOW JUST CLICK THE LINK

Fourth Amendment – Search and Seizure

What Is the Definition of Probable Cause?

Satisfying the Probable Cause Requirement

Exceptions to the Probable Cause Requirement

Examples of Probable Cause

What If an Arrest or Search Occurs Without Probable Cause?

California Penal Code § 170 – Misuse of the Warrant System – Crimes Against Public Justice

Probable Cause – Definition

Overview

Constitutional Basis

Application to Arrests

Application to Search Warrants

Probable Cause in the Digital Age

Supreme Court Interpretation of Probable Cause

What the Fourth Amendment Says

What is probable cause?

How is probable cause established?

How Does Law Enforcement Establish Probable Cause?

Probable Cause Based on Tips from Informants

Probable Cause vs. First Amendment Rights

More on the Fourth Amendment

Footnotes

What Is Reasonable Doubt?

The Reasonable Doubt Standard

“Beyond a reasonable doubt” means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt in order to render a guilty verdict.

KEY TAKEAWAYS

Understanding Reasonable Doubt

Difference Between Belief And Certainty

Unreasonable Doubt

Exculpatory Evidence

Other Standards of Proof

Presumption of Innocence

“It is better that 100 guilty persons should escape than one innocent person should suffer.”—Benjamin Franklin 8

Why Is Reasonable Doubt Important?

How Do You Prove Reasonable Doubt?

What Are the Three Burdens of Proof?

What Is the Difference Between Doubt and Reasonable Doubt?

The Bottom Line

Reasonable suspicion

Overview

Reasonable Suspicion As Applied to a Stop & Frisk

Probable Cause vs Reasonable suspicion

Principles of Probable Cause and Reasonable Suspicion

References

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN: Click Here Officers and DA’s for (Procedure to Follow)

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings