What is Probable Cause?

Anyone who has watched legal-themed television shows or read any popular treatises on the activities of law enforcement agencies has probably heard of “probable cause.” Basically, the term describes a condition that must exist before any police officers are permitted to search a citizen’s private property or seize any such property. Probable cause is often cited in the course of the following law enforcement activities:

-Arrests and bookings
-Vehicle searches
-Personal searches of bystanders or pedestrians
-Searches of homes, businesses and other public or private structures

Applications For Arrest or Search Warrants

Probable cause is often misrepresented in the popular media and may be misconstrued by members of the general public. As such, it is crucial that every American understands the basic framework that governs the actions of the nation’s law enforcement agencies.

The origins of probable cause can be found in the Bill of Rights. The Fourth Amendment to the Constitution stipulates that the “persons, houses, papers and effects” of Americans must be protected from “unreasonable search and seizure.” In effect, the Fourth Amendment prevents law enforcement officers or military personnel from entering a private dwelling or office and seizing items that can be used as evidence of a past, present or future crime or misdeed.

The Fourth Amendment goes on to stipulate that searches and seizures must be predicated on the issuance of an official warrant that outlines the parameters of the search. Generally speaking, warrants describe the physical areas, people and items that may be searched and confiscated.

Law Enforcement Officers Must Have “Reasonable Suspicion”

In the centuries that followed the initial drafting of the Bill of Rights, the concept of probable cause has been fleshed out further. Today, it is widely used to describe a condition in which a law enforcement officer has “reasonable suspicion” that a crime has been committed. For example, an officer who clearly smells the odor of burnt marijuana emanating from a vehicle that he or she has pulled over may cite this fact as “probable cause” that a crime has been committed in the vehicle. Using this framework, the officer may demand an on-the-spot search of the vehicle.

Judges who issue warrants or adjudicate cases in which evidence was obtained during a warrantless search often use a convenient rule of thumb to determine whether the arresting officer had probable cause to conduct a search. In effect, the judge weighs the circumstances that led to the search and determines whether a “prudent and cautious” person would have reason to believe that the individual who was searched was guilty of a crime.

What If There Isn’t Probable Cause?

During the course of a “probable cause search,” an officer may seize any items that led him or her to initiate the search as well as any other illegal items that the search turns up. If a search is deemed to have been conducted without probable cause, a judge may throw out any evidence that it produced.

Furthermore, the officer who conducted the search may be subject to disciplinary actions or civil proceedings. In certain circumstances, the agency that the officer works for might face repercussions as well.

Shahin Zamir is a criminal defense attorney at the Law Office of Shahin Zamir in Houston, TX. He represents those charged with felony and misdemeanor crimes.