What is the Standard for Establishing Probable Cause?

The ability for law enforcement to obtain an arrest or search warrant from a judge, make an arrest or conduct a search rests on what is known as probable cause. The probable cause requirement is based on the Fourth Amendment to the U.S. 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 searched.”

In order to establish probable cause, law enforcement must have objective information that a particular person committed a crime. A police officer cannot merely act on a hunch in making an arrest and call it probable cause. The information the officer has must be such that a reasonable person would believe that the person being arrested committed the crime or that the place to be searched has evidence or was the scene of a crime.

While the officer may truly believe that the information he has establishes probable cause, a judge will ultimately decide probable cause. If, in examining the same information, a judge reaches an opposing decision than the officer, then probable cause did not exist to make the arrest or conduct a search.

Even if a suspect is innocent of the crime, if probable cause existed at the time of the arrest, the arrest is valid. This happens all the time, because the courts have not provided a firm definition of probable cause, so it is decided on a case-by-case basis.

However, judicial opinions suggest that the probable cause standard is generally less than the standard for deciding civil cases, which is preponderance of the evidence. The preponderance of the evidence standard means the facts are more likely than not to be true. Establishing probable cause also falls way below the criminal convictions standard, which is guilt beyond a reasonable doubt.

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or dan@cogdell-law.com.