Today, we’ll be unpacking the phrase probable cause.
What is this standard? How is it used in the law? And how is that standard applied in the field?
A Phantom warrant is a tool used by the police and prosecutors. It’s a bit of a misnomer that the actual term is a ‘warrant under seal’ and it’s most commonly used in situations where police and prosecutors are concerned that evidence is going to be destroyed if the person who is the target of the warrant finds out that the warrant is in existence. So you think about situations like drug trafficking, human trafficking, drug manufacturing, internet, pornography, internet, child pornography rings, and the investigations of those entities. This is why we have what they’re really called secret warrants or sealed warrants, and the purpose for that is to prevent evidence from being destroyed.
A warrant for arrest would typically only issue for a serious felony, occasionally a high degree misdemeanor. Otherwise, an accused is typically issued a summons. Typically, the accused is issued a summons and given the opportunity to voluntarily appear before the court to answer the charges. Now the warrant eliminates the exercise of discretion by making the accused subject to arrest at any time in any place. Now, some people see this as an intentional effort by police and prosecutors to stymie protesters first amendment rights. A lawyer has special privileges as an officer of the court to help you get bond set faster, to get you into court faster to get you out of jail faster.
Probable cause is a legal phrase that’s thrown around all the time when you talk about arrests and searches, probable cause is the standard.
But what does that mean? Exactly?
The definition of probable cause is evidence that would lead a reasonable person to believe the crime is being committed, had been committed or is about to be committed. And that crime is about to be committed by a particular individual, or a particular location holds evidence of that crime if we’re talking about a search, probable causes what makes a search reasonable under the Fourth Amendment to the United States Constitution and therefore permissible, because the Fourth Amendment prohibits unreasonable searches and seizures. It doesn’t prohibit all searches and seizures, just unreasonable ones. The courts have said that if there is probable cause, to support a search or seizure of a person or arrest, then that search or seizure is reasonable. Maryland versus Pringle is a 2003 case that was decided by the United States Supreme Court – it really set the modern standard for what probable cause is and what the standard is. What the court said in that is that police officer have to have a good faith belief that a crime has been committed, and that the individual under arrest committed the crime. In that particular case, an officer approached a car with multiple occupants in which marijuana was discovered. Now, even though the police officer did not have evidence that any one particular occupant was responsible for the pot, probable cause existed to believe all of them did, because co occupants of a vehicle are often engaged in a common enterprise. And all three denied knowing anything about the marijuana that was found in the car.
What’s the difference between probable cause and reasonable suspicion? Both standards have to do with a police officer’s impression of a situation or his opinion as to what’s going on in a particular situation. The two terms have different consequences on a person’s rights, the protocols and procedures a police officer can use, and what the ultimate outcome of a situation might be. Reasonable suspicion is a step lower than probable cause – its standard is defined as ‘a crime may have been committed’. So we’re here talking about the difference between may have, might have, and likely has or likely is to occur.
The Supreme Court of the United States created the reasonable suspicion standard in the landmark case of Terry versus Ohio, when it ruled that the Fourth Amendment prohibition against unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her, even though they don’t have probable cause to arrest. So long as the police officer has reasonable suspicion that the person has committed, is committing or is about to commit a crime. It doesn’t allow for the removal of items from that person, unless they are clearly contraband. It doesn’t allow for the arrest and seizure and removal of that person to a police station because it’s not probable cause; but it does allow police to frisk, stop, and question individuals if they believe that person may be armed and presently dangerous.
In the immediate in the field contexts, such as a roadside stop or a 911 response, the police officer on the scene makes the decision as to whether he believes there’s probable cause to arrest or engage in a search given the facts collected during the course of his or her investigation. In the context of a search warrant, a magistrate or a judge reviews an affidavit and any testimony provided by a police officer who’s asking for a warrant and asking for permission to search a location or arrest a person. After a case is charged, a defendant can challenge the officers decision in the field and can challenge the issuance of a search warrant through a process called a motion to suppress evidence. And in that case, the trial judge will look back at the search as the officer knew at the time, and decide whether the officer made the correct or incorrect decision as to whether there was probable cause to search or arrest, the consequence, if the officer is wrong is the evidence will be thrown out and not be allowed to be used as a punishment for violating the Fourth Amendment to the United States Constitution.
What is critically important, in addition to the people pushing for systemic change, is that people also need to hire defense attorneys who are ready, willing and able to challenge the methods used by police officers that they use to claw back their authoritarian power. Lastly, and most importantly, people need to push for public policy that requires body cams on all police officers, dash cameras in every cruiser to make sure that police officer interactions with civilians are recorded. It limits the ability for police officers to engage in what we call test align, or the phenomenon of police officers getting on the stand and telling a misconstruction or honestly dishonest version of what happened out in the field, rather than the truth that is supported by the video recorded evidence that we find all the time.