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The Fourth Amendment of the U.S. Constitution authorizes police to make an arrest as long as they have "probable cause". The Fourth Amendment states:

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.

Many times when people are questioned by the police, they don't feel that they are free to walk away from the officer. However, until you've been formally detained (as in a traffic stop) or arrested, the officer can't stop you from simply walking away. However, once the officer prevents you from walking away, an arrest has taken place. Whether the arrest is legal or not depends in large part on whether he or she had "probable cause".

What is Probable Cause?

The Fourth Amendment of the U.S. Constitution authorizes police to make an arrest as long as they have "probable cause". The Fourth Amendment states:

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.

The idea behind probable cause is to prevent the sort of police states that exist in other countries, where officials can simply round up people they don't like as "undesirables" or "threats" without any justification. This standard is deliberately vague, but over time the interpretation of what constitutes probable cause has become fairly solidified:Probable cause is established through factual evidence, and not just suspicions or hunches.Probable cause can be established through observation alone (sight, smell, sound, etc), and includes observations that create suspicion based on a familiar pattern of criminal activity, such as when an officer sees a car circling around an area repeatedly or when someone is flashing their headlights.Probable cause can be based on information derived from witnesses, victims and informants.Probable cause can be based on police expertise, such as recognition of gang signs, detection of tools appropriate for committing certain crimes, or knowledge of movements and gestures that indicate criminal activity.Probable cause can be based on circumstantial evidence that only indirectly indicates that a crime has occurred, such as a broken window.

Who Decides Whether an Officer had Probable Cause?

While probable cause needs to be established before an arrest by the police officer, probable cause can be determined after the fact by a judge. This means that an officer could have in good faith thought he or she had probable cause, but a judge can later determine that there was in fact no probable cause. If this occurs, evidence acquired without probable cause becomes inadmissible in court.

Also, even if it turns out that the police were wrong and a suspect is later acquitted, it doesn't affect the determination of probable cause. Probable cause is extremely important to the police, because even if the suspect is found to be innocent, the finding of probable cause shields the police from lawsuits.

How Much Evidence is Enough to Establish Probable Cause?

There is no set amount of information and no hard rule for what constitutes "enough" information to establish probable cause. The standard is meant to be flexible, and allows judges to balance the rights of the police to conduct investigations and protect the populace in good faith, against the rights of citizens to not be harassed by the police. Judges will often make their decision on whether probable cause existed based on their:Interpretations of what the drafters of the Fourth Amendment meant to protectViews on the police, government interference and defendant's rightsExperience in deciding similar factual situationsExperience with prior cases involving the arresting officer.

Probable Cause + "Probable cause" generally refers to the requirement in criminal law that police have adequate reason to arrest someone, conduct a search, or seize property relating to an alleged crime.

The probable cause requirement comes from the Fourth Amendment of the U.S. Constitution, which states that:

"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."

As seen in those words, in order for a court to issue a warrant -- for someone's arrest, or to search or seize property -- there must be "probable cause."

Police must also have probable cause to arrest without a warrant, and in many cases to search or seize property without a warrant.

Prosecutors must also have probable cause to charge a defendant with a crime.

Warrants and Probable Cause

Typically, to obtain a warrant, an officer will sign an affidavit stating the facts as to why probable cause exists to arrest someone, conduct a search or seize property. Judges issue warrants if they agree that probable cause exists.

There are many instances where warrants are not required to arrest or search, such as arrests for felonies witnessed in public by an officer. Here is more information on when warrants are not required.

If a warrantless arrest occurs, probable cause must still be shown after the fact, and will be required in order to prosecute a defendant.

Probable Cause for Arrest

Probable cause for arrest exists when facts and circumstances within the police officer's knowledge would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime. Probable cause must come from specific facts and circumstances, rather than simply from the officer's hunch or suspicion.

"Detentions" short of arrest do not require probable cause. Such temporary detentions require only "reasonable suspicion." This includes car stops, pedestrian stops and detention of occupants while officers execute a search warrant. "Reasonable suspicion" means specific facts which would lead a reasonable person to believe criminal activity was at hand and further investigation was required.

Detentions can ripen into arrests, and the point where that happens is not always clear. Often, police state that they are arresting a person, place him/her in physical restraints, or take other action crossing the line into arrest. These police actions may trigger the constitutional requirement of probable cause.

Someone arrested or charged without probable cause may seek redress through a civil lawsuit for false arrest or malicious prosecution.

Probable Cause to Search

Probable cause to search exists when facts and circumstances known to the officer provide the basis for a reasonable person to believe that a crime was committed at the place to be searched, or that evidence of a crime exists at the location.

Search warrants must specify the place to be searched, as well as items to be seized.

There are many instances where a search warrant is not required. Common situations in which police are allowed to search without a warrant include:when they have consent from the person in charge of the premises (although who that person is can be a tricky legal question);when conducting certain searches connected to a lawful arrest; andin emergency situations which threaten public safety or the loss of evidence.

Police also do not need a warrant to search or seize contraband "in plain site" when the officer has a right to be present.

Questions often arise over the extent to which police may search vehicles. Here are some commonly asked questions and answers about vehicle searches.

Probable Cause to Seize Property

Probable cause to seize property exists when facts and circumstances known to the officer would lead a reasonable person to believe that the item is contraband, is stolen, or constitutes evidence of a crime.

When a search warrant is in play, police generally must search only for the items described in the warrant. However, any contraband or evidence of other crimes they come across may, for the most part, be seized as well.

Should evidence prove to have resulted from an illegal search, it becomes subject to the "exclusionary rule" and cannot be used against the defendant in court. After hearing arguments from the prosecuting and defense attorneys, the judge decides whether evidence should be excluded.

Conclusion

Probable cause refers to the amount and quality of information required to arrest someone, to search or seize private property in many cases, or to charge someone with a crime. Probable cause to arrest, search, or seize property exists when facts and circumstances known to the police officer would lead a reasonable person to believe:that the person to be arrested has committed a crime;that the place to be searched was the scene of a crime;that the place to be searched contains evidence of a crime; and/or that property to be seized is contraband, stolen, or constitutes evidence of a crime.

Miranda Warnings and Police Questioning + Through pop culture, TV and movies, most Americans know that in some cases the police are obligated to "read you your rights". Most of us can recall at least the beginning of a typical Miranda warning as easily as recalling the pledge of allegiance. What most Americans don't know, however, is exactly what their Miranda rights are and when they apply.

In 2010, the US Supreme Court issued a series of decisions that modified the rules surrounding Miranda rights. These decisions have significantly affected the circumstances under which Miranda protections apply, so it's a good idea to reexamine the rules for Miranda warnings.

Your Miranda RightsThe Miranda warnings originated in a U.S. Supreme Court ruling, Miranda v. Arizona, 384 U.S. 436, which set forth the following warning and accompanying rights:You have the right to remain silent;Anything you say can be used against you in a court of law;You have the right to consult with a lawyer and have that lawyer present during the interrogation;If you cannot afford a lawyer, one will be appointed to represent you;You can invoke your right to be silent before or during an interrogation, and if you do so, the interrogation must stop.You can invoke your right to have an attorney present, and until your attorney is present, the interrogation must stop.Variations on Traditional Miranda Warnings

You might notice that the last two points from above are often omitted in pop culture references. In fact, many states have their own particular variation of Miranda requirements that their police officers must use, so the language differs slightly from one police department to another.

The most common addition to these core Miranda rights has been to end the traditional warning with a question along the lines of "do you understand these rights as they have been read to you". A suspect must affirmatively respond that they understand these rights - courts will not interpret silence as a sufficient acknowledgment of the Miranda warning.

The US Supreme Court firmly established this principle in a 2010 decision. In that case, a murder suspect refused to sign an acknowledgment of his Miranda rights, then later made statements that were used against him in his conviction for the crime.

The Court ruled that the burden was on the suspect to invoke his Miranda rights, and his failure to sign the acknowledgment essentially amounted to a waiver of those rights. Miranda Warnings Don't Always Apply

There are two very basic prerequisites before the police must issue a Miranda warning to a suspect:The suspect is in police custodyThe suspect is under interrogation

It's crucial to understand these prerequisites because if you aren't formally in police custody, and you aren't being interrogated, the police don't have to give you a Miranda warning. This, in turn, means that the police can use anything you say until those two requirements are fulfilled as evidence against you.Police Custody

"Police custody" is generally defined as anytime the police deprive you of your freedom of action in a significant way. Realistically though, it means being arrested. Some jurisdictions treat detentions differently than arrests, though, and a Miranda warning isn't required in such a situation.

Generally speaking, an actual arrest must take place before the police need to give you a Miranda warning. This means that simple things such as traffic stops or a police officer walking up to you and asking you questions are not considered police custody. When in doubt, just stay silent (except for the exception about identification discussed below).Police Interrogation

Finally it's worth noting that the warning must come before you are being interrogated, so until the interrogation has begun, you are not necessarily owed a Miranda warning. A request for identification is generally not considered an interrogation, nor have the police placed you into custody simply by asking about your identity. In general, you must always give a police officer identification.

Once police officers begin asking questions that may implicate involvement in a crime, however, an interrogation has begun.

In another 2010 case, the US Supreme Court refined the rules for police interrogations. In that case, the Court ruled that police officers could initiate a second interrogation of a suspect who had previously invoked his Miranda right to remain silent once two weeks had elapsed from the date of the original interrogation. The police did not have to give the suspect another Miranda warning, according to the Supreme Court. The Court decided that the Miranda warning from the previous interrogation remained in effect, thus the statements the suspect gave during the second interrogation constituted a waiver of his right to silence.Failing to Provide a Miranda Warning

If the police fail to make you aware of your Miranda rights, nothing said in response to a custodial interrogation can be used against you. In addition, any evidence that is derived from that improper custodial interrogation is also inadmissible.

For instance, if the police fail to make you aware of your Miranda rights and questioning you leads them to a murder weapon, that weapon and the contents of that interrogation are both inadmissible unless they can show that they would have found the weapon without your statements.Physical and Psychological Intimidation

Information that you voluntarily offer to a police officer after receiving a proper Miranda warning is generally admissible in court. Police officers are not allowed to use physical or psychological intimidation to get you to make a statement, however. TV favorites such as hours spent under a bright light or sleep deprivation render the statement involuntary, and not admissible in court.What to Say and Not Say If You Are Arrested

People often blurt out admissions in the heat of the moment or let the police bait them into admissions. The best advice if you are arrested is quite simple: Be cooperative, be polite, provide identification, but say nothing other than to request a lawyer.



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