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In United States criminal law, probable cause refers to the standard by which a police officer may make an arrest, conduct a personal or property search or obtain a warrant. It is also used to refer to the standard to which a grand jury believes that a crime has been committed. This term comes from the Fourth Amendment of the United States Constitution:
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. — 4th Amendment
Definition
The most widely held common definition would be "a reasonable belief that a crime has been committed" and that the person is linked to the crime with the same degree of certainty. An alternative definition has been proposed, "reason to believe that an injury had criminal cause", which is claimed to be more protective of individual rights as was intended by the authors of the Bill of Rights. See the critique below.
In the context of warrants, the Oxford Companion to American Law defines probable cause as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)." "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction. Even hearsay can supply probable cause if it is from a reliable source or is supported by other evidence.
Related cases
The Supreme Court decision Illinois v. Gates (1983) lowered the threshold of probable cause by ruling that a "substantial chance" or "fair probability" of criminal activity could establish probable cause. A better-than-even chance is not required.
The decision in Terry v. Ohio (1968) established that some brief seizures may be made without probable cause. If an officer has a reasonable suspicion that a crime has been committed or will soon be committed, that officer may briefly detain a suspect to frisk him for weapons and question him. This is known as a "Terry stop."
In United States v. Matlock, 415 U. S. 164 (1974), the Court announced the "co-occupant consent rule" which permits one resident to consent in the co-occupant's absence. The case established that an officer who makes a search with a reasonable belief that the search was consented to by a resident does not have to provide a probable cause for the search.
Probable cause hearings
In the United States a probable cause hearing is the preliminary hearing that typically takes place after arraignment and before a serious crime goes to trial; the judge is presented with the basis of the prosecution's case and the defendant is afforded full right of cross-examination and the right to be represented by legal counsel. If the prosecution cannot make out a case of probable cause the court must dismiss the case against the accused. See also: evidentiary hearing.
Critique
The first definition above "a reasonable belief that a crime has been committed", has been criticised for several reasons, highlighted here. The alternative definition "reason to believe that an injury had criminal cause" corrects these deficiencies.
Circular reasoning: Which came first, law or crime? If crime is "things which the law prohibits", and law defines "that which is crime", we have self-reference. And since the phrase probable cause first occurs in the United States Bill of Rights, which was defining the law, it has been suggested that probable cause must be defined, not in terms of law, but in terms of connection between the accused and an injured victim.
Semantic Error: The most common usage of "probable cause" is usually something like "the officer had probable cause to believe that a crime occurred". However, this definition also includes belief. A simple substitution of the definition into the most common usage results in the bizarre "the officer had a reasonable belief that a crime has been committed to believe that a crime occurred". Either our definition or this usage is incorrect.
Individual Discretion: The system of government defined by the US Constitution, with separation of powers, checks and balances, and juries, suggests that the decision to arrest should not be made on-the-spot by an individual, such as a police officer. The language of the Constitution suggests that arrests, searches and seizures should be a deliberative process, starting with the "oath or affirmation" of a civilian complaint, and that indictments should be made by (Grand) juries.
Failure to make connection to victim's injury: The purpose of the Fourth Amendment is to protect the rights of citizens against the abuses of government. The Declaration of Independence states that the Colonists were being "transported beyond the seas to be tried for pretended offenses".
External links
- Legal information about probable cause
- The Lawful Arrest FAQ entry on probable cause
- Further information from Flexyourrights.org
"Probable cause"