A primary issue in the criminal arrest process is what’s called probable cause. Police need probable cause to justify an arrest or demand an arrest warrant from a judge. In order to establish probable cause there must be objective circumstances that lead law enforcement to believe that a crime has been supposedly committed by a suspect. Police officers simply cannot use their gut feeling or hunches to justify an arrest or an arrest warrant. However, it is the judges and not law enforcement officers that have the final say in determining whether probable cause exists or not even though the police officer might sincerely believe that the facts of the situation establish probable cause. Therefore if the judge reviews all the information and facts pertinent to the case and finds that probable cause has not been established, then the arrest or the warrant is nullified.
Sometimes it happens that probable cause may have existed at the time of the arrest even if the defendant wasn’t doing anything wrong or illegal. In other words an arrest or an arrest warrant is deemed invalid if probable cause has not been established regardless of the innocence or guilt of the suspect. An important question that arises in this regard is the amount of information or evidence needed to justify an arrest or an arrest warrant. Generally mere suspicion that a crime has been committed is not sufficient to justify probable cause however, the burden of proof is way less than what is required to convict a person of a crime beyond a reasonable doubt. Probable cause is an intangible or abstract concept, therefore it cannot be uniformly defined and courts make their determination of probable cause on a case by case basis.
The issue of probable cause usually is the standard by which the courts evaluate the validity of
Arrests without warrants
Warrantless searches and seizures
Requests for arrest warrants and search warrants.
Probable cause is established when the facts support an objective belief that the suspect to be arrested has committed a crime or that the intended location for a search would bear evidence of a crime. This bears upon the likelihood that a suspect has committed a crime or the location to be search would yield evidence of the crime. The courts are typically reluctant to describe probable cause and reasonable suspicion in tangible terms. However the majority of judicial opinions suggest that probable cause is deemed to be less than the standard of preponderance of evidence, which is the typical standard for deciding civil cases. The standard of preponderance of evidence generally requires proof that a fact is more likely to be true than not. However, if probable cause is lower than the preponderance-of-evidence standard, then it requires less than 50% likelihood which would make the term, probable a misnomer.
An example of this may be the constitutional dog-sniff which isn't a search per Illinois v. Caballes. However, now that the premise has been legislated, it is bound to be applied. Let’s say, a car is pulled over with four passengers. During the stop a dog is run past the vehicle and the dog is alerted. As per Illinois v. Caballes, law enforcement has valid probable cause to search the contents of the vehicle. They can have the people exit the vehicle and then search it, finding nothing. Now the question arises whether law enforcement can search the people who were in the car when the dog was alerted. There was probable cause that some contraband was present in the vehicle and the people exited from that very same vehicle. So would it be legally valid if law enforcement were to search the people? Not really.
In the landmark case Whitehead v. Commonwealth, the Virginia Supreme Court ruled that the standard for searching people is higher than probable cause for searching a vehicle. The probable cause for the vehicle search was established by the dog sniff and it covered the entire area of the car and the suspects were in the car at that time. Nevertheless, the Virginia Supreme Court ruled that something more than mere probable cause was required for law enforcement to search an individual. In making that decision the court used several cases for that reasoning. Some of those cases are:
In order to get there the Court has to stretch its reasoning across several different cases. Here are the cases it goes through:
U.S. v. Di Re, 1948, USSC: The mere presence of an individual in a car where a crime has been committed is not probable cause if one of the other persons in the car has been specifically identified as the law breaker.
Ybarra v. Illinois, 1979, USSC: If police get a search warrant for a place of business the search warrant does not extend to random customers who happen to be in the place of business when the warrant is served.
Maryland v. Pringle, 2003, USSC: If contraband is discovered inside a car an officer can reasonably deduce that there is probable cause that all occupants of the car are involved in the illegal activity because of the small size of the automobile.
El-Amin v. Commonwealth, 2005, Va.SCt: Reasonable articulable suspicion exists for a Terry pat down of a group of people in the evening in a high crime area, if an individual in the group is found to have a weapon.
The Pringle case and the Di Re cases seem to be in direct contrast to each other. The Di Re ruling was severely limited by the Pringle ruling. The Virginia Supreme Court's reasoning is pretty close in rationale to Di Re before being limited by Pringle. Prior to this limitation, the Di Re case stood for the idea that presence of contraband or any illegal activity does not mean that the probable cause adheres to all occupants of the car. In any case, we have to face the practical applications of this decision. As one officer searches a car another officer can run the dog past the individuals who have exited the car. As long as there is no extension in detention time, this second, non-search sniff should not have any constitutional implications and furnish all the particularized suspicion that is needed.
If you find yourself in a situation where you have been wrongfully arrested or have been subjected to an unlawful search, it is advisable that you retain the services of a competent criminal defense attorney to safeguard your freedom and your reputation.