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  • Jim Schroeder

Who Needs Probable Cause?

Updated: Feb 3, 2023

“What is the probable cause officer?”  We have all heard this question, whether watching crime dramas or YouTube videos where someone is asking a police officer why they are being stopped and searched.  So, just what is probable cause?  And why is it important?

Let’s begin with the idea that we like our privacy.  As Americans, we do not want Government officials snooping in our business.  This right to privacy is found in the Fourth Amendment to the U.S. Constitution, 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.”

Probable cause is a nebulous idea that prior to a Government official snooping in our business by stopping and searching a person, or searching property, that Government official must have a good reason to do so.  That good reason is “probable cause.”

You might be thinking “I don’t do anything wrong.  I don’t break the law.  I don’t care if the police stop me, and search my car.  Why does this matter?”  Well, there are over 5,000 Federal criminal laws and another 10,000 to 300,000 regulations that can be criminally enforced.  And every state and local government has its own set of laws and regulations.  Do you know them all? And there is the basic right to privacy and to be free from harassment by Government officials while going about our daily affairs.

Probable cause does not have a firm definition.  That would be too easy.  It is dependent on facts and circumstances.  Probable cause is found when a reasonably prudent person would believe that the person to detained has committed, or is about to commit a crime, or the place to be searched contains evidence of a crime.  It requires more than mere suspicion.  The U.S. Supreme Court has stated that probable cause cases deal with probabilities.  These cases are not technical but deal with factual and practical considerations of everyday life.

To evaluate the probable cause, think about personal privacy.  A person walking down a public street is in public view.  If there is no indication that has committed, or is about to commit, a crime, the police would not have probable cause to stop and detain that person.  However, if that person matches the description of someone who just committed a robbery, is carrying a plastic bag of money with money falling from it, the police would have probable cause to stop and talk to that person.

Similarly, a person has an expectation of privacy within their home.  But, if the police can see evidence of a crime through an unobscured window, then they would likely have probable cause to search that home.  Most likely they would have to get a warrant to search that home, but more about warrants at a later time,

A person may give consent to police to search their person or an area that would normally be protected by probable cause.  But the person who gives that consent must be the person who would normally assert control over that area.  A neighbor would not normally be able to consent to a police search of a neighboring home.  However, a person living within the home, even if not the actual homeowner, probably would be found to be able to give consent to search the home.

Automobiles raise a particularly difficult issue regarding probable cause and searches.  Because of their mobility, often it is impractical to require an officer to get a search warrant in many cases.  But the same basic rules apply.  If an officer witnesses the driver of the vehicle commit a crime, that vehicle may be stopped.  However, to search that vehicle, an independent basis would be needed.  If an officer sees a firearm on the seat of a vehicle when looking through the window, that vehicle may be stopped and searched.  In fact, the police may even run a vehicle’s license plate, just because the vehicle is in public view and there is no expectation of privacy regarding those license plate numbers.

Entire books have been written regarding probable cause and these issues are argued every day in Courts across the country.

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