To make a valid arrest, a police officer must determine probable cause—facts and circumstances that would lead a reasonable person to believe a crime is being, has been or will be committed.Photo Dale Stockton
FEATURED IN INVESTIGATION
Criminal investigation demands a thorough understanding of probable cause. Detainments, arrests, searches, seizures, interviews and interrogations are legally judged on the reasonableness of police action based on the totality of circumstance known to the police prior to taking an action. The power of the police in our free society is intentionally limited by several of the first 10 amendments to the U.S. Constitution, along with decisions from federal, state and local court cases. The mechanism used to explain a police officer's legal justification for interfering with a person's liberty (e.g., effectuating an arrest with or without a warrant) is written communication, such as a police report and/or affidavit, followed by oral communication, such as a deposition and/or court testimony. Ability to skillfully document in writing facts and circumstances that lead to logical inferences and reasonable conclusions remains a professional requirement in criminal investigation. Excellent investigative work is negated and the guilty may walk free if the legal framework on which it was based can't be adequately explained.
Our forefathers feared strong central government. In 1789, two years after the signing of the Constitution, James Madison of Virginia proposed a dozen amendments to the Constitution. Congress approved 10 of them in September 1791, and they took effect in December of that year.1 These first 10 amendments to the Constitution became known as the Bill of Rights. To understand the investigative process, you must know that the Bill of Rights restricts government actions against individuals. The Bill of Rights, particularly the Fourth, Fifth and Sixth Amendments and their associative court cases handed down through the years, is the engine that drives what the police can and can't do.
Probable Cause & the Fourth Amendment
The laws related to search and arrest are covered by the Fourth Amendment, which states, 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.
In order to make a valid arrest (seizure) or search a particular person, place or thing, a police officer must have probable cause facts and circumstances that would lead a reasonable person to believe a crime is being, has been or will be committed. Note the use of the present, past and future tense in this language. If a police officer observes a crime committed in their presence, such as John strikes Paul in the face with his fist, they may, in most states, arrest John without an arrest warrant signed by a judge.
If John strikes Paul in the face with his fist and a police officer was not present but called to the scene a short time after this occurred, a crime has been committed. The officer did not see the crime occur. In most states, if John can be located a short time after the incident based on speedy information from Paul, the officer can arrest John without an arrest warrant based on probable cause. This ability of the police in most states to arrest without an arrest warrant signed by a judge is especially true if the assault was a felony.
Here's an example of a crime that will be committed: A confidential, reliable informant was recently in an apartment and heard three other men discussing robbing a bank. He also observed the men viewing diagrams of the bank, alarm codes and escape routes, and he saw weapons in the apartment to be used in the bank robbery. The informant tells a detective a bank robbery is being planned.
The definitions of what constitutes a crime, felony, misdemeanor, violation, corpus delecti and elements of a crime prove crucial to understanding the circumstances under which an officer can make an arrest with or without an arrest warrant based on probable cause.
Probable cause For a police officer to make an arrest with or without an arrest warrant signed by a judge, the officer must be able to conclude to a reasonable probability an offense has been committed and the person is in fact a criminal participant.2 A shortened version of the definition of probable cause often used to train police officers states less than proof, but more than mere suspicion that a crime is being, has been or will be committed. Thus, probable cause requires a higher standard than reasonable suspicion, but less than the proof beyond a reasonable doubt required for conviction in court.
Probable cause is a series of facts and circumstances in a step-by-step progression that by themselves or in combination may cause a reasonably prudent person to believe a crime was committed and therefore allow the suspect s arrest. Another definition: Rational grounds of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.3 This may take seconds or years.
Here s a partial list of guilt-laden or other facts that may help build probable cause: