This guide will educate you on issues of probable cause, what it means, how an officer may obtain it and what needs to be done once it’s acquired. Probable Cause applies to an arrest as well as to searches. It may apply to DWI, DUI and all types of criminal cases.
WHAT IS PROBABLE CAUSE AND HOW DOES AN OFFICER OBTAIN IT?
Probable cause is a quantum of information. It is also a set of facts that lead to a legal conclusion based on that factual data. It is information sufficient to warrant a person of reasonable caution to believe that an accused committed a crime or that the evidence, i.e., the fruits of the crime and/or instrumentalities of a crime, can be found at a given location. In simple terms, probable cause is a belief greater than 50% that someone committed an offense/crime or that evidence of a crime is at a given location.
HOW DOES AN OFFICER OBTAIN PROBABLE CAUSE?
An officer can obtain probable cause by utilizing (1) his own observations; (2) information gained by another police officer (i.e., the fellow officer rule); (3) information acquired by private citizens; (4) information gained by a confidential informant and (5) information gathered from an anonymous tip.
ONCE AN OFFICER HAS PROBABLE CAUSE, MAY HE/SHE IMMEDIATELY ARREST &/OR SEARCH A SUSPECT OR LOCATION?
Once an officer obtains probable cause to believe that a particular suspect has committed a crime, he may arrest him in most circumstances. If the suspect is in public and the officer is located in a place that he (the officer) is legally allowed to be, he may arrest the suspect without an arrest warrant. However, if the suspect is located in a non-public area, he needs to obtain an arrest warrant and possibly even a search warrant. I will discuss these issues in another legal guide but suffice it to say that generally speaking, in order to arrest someone without an arrest warrant once probable cause is secured, it must be done in public.
With regard to searching someone’s person or a place, there is a different analysis once probable cause is obtained. If the officer gains probable cause to search the accused or a location, the officer MUST secure a search warrant. However, there are several exceptions to the warrant requirement. Those exceptions are easily remembered by the acronym BEACHPASS. In order to search a person or place without a search warrant, a police officer MUST have probable cause and one of the following BEACHPASS (Actually BEACHPAS) warrant exceptions: (1) Border Search; (2) Exigent Circumstances; (3) Automobile Doctrine; (4) Consent to Search; (5) Hot Pursuit; (6) Plain View Doctrine; (7) Administrative (aka Inventory) Search; and (8) Search Incident to a Lawful Arrest. Each of these warrant exceptions will be discussed in greater detail in another legal guide.