What Constitutes Probable Cause?

Hopefully you already know that police cannot just randomly arrest you or search your property. But when can they search your property or arrest you? Well, it all depends on probable cause—but what is that? Keep reading to find out. 

What Is Probable Cause? 

Probable cause is the circumstances around a particular situation that a reasonable person could argue that a crime either has been committed, is currently being committed, or will be committed in the near future, and based on this may use these facts and circumstances to arrest someone or request a warrant to arrest someone, or seize their property. For example, if an officer pulls you over for speeding and your car wreaks of cannabis, the officer may have probable cause to search your vehicle. If they find illegal substances, they would have sufficient basis  to seize them. But what does probable cause mean? Well, in the most simple terms, an officer has probable cause when they have a reason to believe that a crime has been committed. 

Arrest Warrants 

Under certain circumstances, it is possible for an officer to make an arrest without an arrest warrant. Such circumstances may include, an officer witnesses a person breaking the law, or a person is actively destroying evidence, or a suspect is actively attempting to escape. Aside from those circumstances, an arrest warrant is usually required. To get a warrant, a police officer has to provide a sworn affidavit to a judge about what evidence they have against the person, and the judge decides whether that “evidence” is sufficient to charge the person with a crime or not. The judge is meant to serve as a check on the police to ensure they aren’t inappropriately infringing on someone’s rights if there isn’t sufficient evidence. Judges aren’t meant to be a rubber-stamp approval for everything the police do. It’s important to note that an arrest warrant is separate from an indictment or formal charges. When a person is charged with a crime, it means that the prosecution has determined that there is enough evidence to file charges against the suspect. When a person is indicted, it means that a grand jury has determined that there is enough evidence to charge a suspect with a crime. A grand jury is a confidential group of people who were subpoenaed for jury duty to review the evidence against the potential defendant to determine whether there is a basis to charge that person with the crime. However, in grand jury proceedings, it is only the state/prosecution that puts on their case, there is no evidence presented from the potential defendant, because they haven’t been charged yet.  

What If There’s No Warrant? 

As previously mentioned, a police officer can make an arrest without a warrant under certain circumstances. But can they search your property and collect evidence without a warrant? In some cases, yes.  Generally, the police are allowed to search and seize your property if you give them permission. They could use any evidence they find here against you. Police are allowed to search the property without a warrant if they see evidence of a crime in “plain view” as well—think drugs on the coffee table. If you are brought in for questioning, remember you are free to leave at any time if you are not under arrest. If you’re not sure, ask the police if you’re under arrest or if you can leave- they have to tell you. Much like the seized items, anything you say can still be used against you, even before you’re arrested, so it’s best to decline to speak with the police. Finally, you have to specifically ask for an attorney after you’ve been given your Miranda warning. Failure to specifically ask for an attorney has been found to be a waiver, even if you hint or talk around the desire to have an attorney present. 

How Much Evidence Is Needed? 

It’s not about how much evidence is needed, especially when it comes to arresting an individual. It’s more about whether or not they have a reasonable belief that the individual they’re arresting did indeed commit a crime. Let’s say a person is driving down the street when an officer is pulls them over. When the officer begins talking to the person, he notices an open container of alcohol, along with a person smelling of alcohol. In this case, the officer definitely has probable cause that a crime has taken place, and they’d be able to place that person under arrest.