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Probable Cause (I) (podcast transcript)

Miller:    This is Tim Miller and Jennifer Solari.  We’re back again.  We’re continuing our journey through the 4th Amendment to the Constitution of the United States.  We said that a government intrusion into a place where one has a reasonable expectation of privacy triggers the 4th Amendment to the Constitution and once triggered that search, well it must be reasonable, and to be reasonable the courts generally require probable cause supporting a warrant.  Jenna, what is probable cause to search mean?

Solari:    Probable cause to search means a government agent has information that will lead a person of reasonable caution to believe that a search of a particular place will turn up specific evidence of a crime.   

Miller:    Okay; what about probable cause to arrest?

Solari:    That’s the same quantum of proof, but it’s phrased a little bit differently.  It’s information that will lead a reasonable person to believe that a crime’s been committed and the suspect probably committed it.

Miller:    Sounds like it’s pretty flexible.

Solari:    It is.  The Supreme Court said probable cause is a flexible common sense standard.

Miller:    What’s probable cause based on?

Solari:    Very simply, facts.  Just facts and circumstances.

Miller:    The courts refer to various levels of proof ranging from no proof at all, like a mere hunch up to proof beyond a reasonable doubt, which is the level of proof necessary to convict someone of a crime.  Now, help me visualize these levels of proof and where probable cause might lay.

Solari:    Okay, well I’ve seen it sort of depicted visually a lot of different ways, and the way I kind of like is to consider a staircase.  And, at the very bottom of the stairs is sort of the base of the staircase.  Tere are no facts here - that’s mere suspicion or hunch.  No facts, maybe just a gut feeling. 

If you go a step higher, then you find sufficient facts to justify what we call, reasonable suspicion.  Each of these higher steps is supported by facts.  The higher up you go on the staircase, the more facts you have.  So, again that first step is reasonable suspicion. 

One step higher, and you find probable cause – again, supported by facts and circumstances. 

Above probable cause you find what’s known as preponderance of the evidence.  Preponderance of the evidence is a standard of proof that has to be met to hold the defendant liable in a civil action.  This essentially means more likely than not so whoever can bare their burden of proof to 51% verses 49% in a civil cases, wins the case. 

And finally toward the very top of the stairs is the criminal standard or proof beyond a reasonable doubt.  That’s the level of proof that the criminal court requires to convict somebody of a crime and punish him or her.  And, of course, what step your standing on, whether it be the very bottom of the stairs, reasonable suspicion, or probable cause, determines what legal action you can take.

Miller:    Okay.  Let’s think about this for a second.  Now in your example you said that at the very bottom of the stairs there’s no facts.  Is that correct?

Solari:    Right.

Miller:    Can an agent ever do anything with no facts?  In essence, can she make something out of nothing?  For example, suppose an agent sees someone out on a public sidewalk and has a hunch that the person is about to steal something from a store.  I mean it’s just a hunch.  He’s got no facts to support it; but, the agent just thinks that there is something wrong here.

Solari:    Well, this would be a great opportunity for the agent to make what we call “voluntary contact.”  Just like a private citizen, agents can walk up to somebody on the streets and strike up a conversation with him or her.  An agent on a public sidewalk can approach that person; ask him how he’s doing; what he’s doing; where he works; ask him for identification; and, ask for a consent to search.

Miller:     What if he refuses to stop or to be searched?

Solari:    Whichever step your standing on determines the legal action you can take.  Since we’re at the bottom of the staircase, all we have is a hunch.  There’s not much else the officer or the agent can do, aside from maybe trying to convince this person to stick around for a little bit longer; but at the end of the day, the agent is going to have to let that person walk away if that’s what the person wants to do.

Miller:    A little higher up the stairs is reasonable suspicion, correct?

Solari:    Yes.

Miller:    What is reasonable suspicion?

Solari:    Well talk a lot more about that when we talk specifically about Terry Stops and Terry Frisks.  But briefly, here the agent has articulable facts and circumstances that make the suspicion reasonable.

Miller:    What can an agent do with reasonable suspicion?

Solari:    If the agent or officer can articulate facts that suggest criminal activity is afoot - that is the person has committed, is committing or is about to commit some sort of crime - the agent can use reasonable force to stop the suspect and investigate that suspicion.  In other words, we’re on that first step of the staircase.  It’s no longer a voluntary contact.  The officer can actually make the suspect stop for reasonable period of time while he conducts that brief investigation. 

As an example, an officer might see somebody looking in a store window.  Say it’s late at night, after the store is closed, and the person is sort of discretely pulling on the doors and windows trying to see maybe if something is unlocked, or if he can get in there.  I submit to you that with those facts, the officer has a reasonable suspicion that that person might be trying to break into that store.

Miller:    With reasonable suspicion, can that agent now search the suspect?

Solari:    Well, so far we’ve been talking about reasonable suspicion of criminal activity a foot.  That’s enough to stop a suspect for that brief investigation.  So as I understand your question, now it’s whether the agent can search the suspect, once he’s stopped him.  With mere reasonable suspicion, the agent can’t search for evidence of a crime; but, the agent can pat the suspect down for weapons if he reasonably suspects the person’s presently armed and dangerous. 

Now again, remember the steps are supported by facts and circumstances so the agent has to articulate facts that support his suspicion that the person is presently armed and dangerous.  So in that example I just described, the person thinking about breaking into that store, the agent might reasonably suspect the person is armed and dangerous, if he sees like a bulge in the suspect’s pants pocket or his coat pocket. 

You know what, even if he doesn’t see a bulge, the agent can probably articulate that suspects who break into buildings are usually in possession of burglary tools, like crowbars or screwdrivers, which obviously could be used as weapons.  So based on those articulable facts, the agent could do a limited pat down of the suspect’s outer clothing to look for any hard objects that could be weapons.

Miller:    I think we are getting closer to probable cause.  A couple of steps up the stairs is probable cause; correct?

Solari:    That’s right.

Miller:    So according to your example, probable cause is going to fall somewhere between reasonable suspicion and a preponderance of the evidence.  Is that right?

Solari:    Yes, it falls somewhere in there.  And again, probable cause to search means evidence that would lead a person of reasonable caution to believe that evidence of a crime will be located in a particular place to be searched. Now for better or worse, the courts haven’t ever quantified probable cause by assigning some type of numerical values to it so I can’t give you a number.  We do know that probable cause requires more than reasonable suspicion.  Reasonable suspicion is a relatively low standard, but probable cause still isn’t a terribly high burden.  I think it’s probably safe to say that probable cause can be met by something a little less than a 50/50 likelihood.

Miller:    Can you give me an example of when an agent might have probable cause to search a house?

Solari:    Let’s assume our suspect is Mr. X.  That’s an easy one.  An undercover law enforcement officer made arrangements with Mr. X to sell him $20,000.00 in counterfeit currency.  So, the agent and Mr. X meet in their respective cars at the city park, the agent sells Mr. X the 20 grand in currency, and Mr. X drives away.  The undercover agent immediately goes to get a search warrant.  By the way, Mr. X owns a home in the nearby city.  So, let me ask you, based on those facts where might there be probable cause to search?

Miller:    Oh you are going to make me answer my own question. 

Solari:    Yes sir.

Miller:    Well, I’d say first of all, you know Mr. X’s car.   I think there’s PC to believe that the evidence (counterfeit currency) is going to be in his car.

Solari:    Okay.  I agree.  I think a personal of reasonable caution would believe that the currency would be located in Mr. X’s car and that’s where the undercover officer last saw it.  What do you think about the house in the nearby city?

Miller:    Ahhh, you know I think so.  Although the undercover cop didn’t see X put the money in the in the house, itself, $20,000.00 in counterfeit currency is a lot of expensive contraband.  I think he’d probably want to keep it in a safe place, like his house.

Solari:    I absolutely agree with you and I think your right even though he didn’t see him actually put money in the house.  It’s valuable.  I think a reasonable person would chose a safe place to keep that 20K, like a house.  So I absolutely agree.

Miller:    Okay, I’m getting a little tired answering these questions.

Solari:    (Laughing)

Miller:    Let’s take a break and we’ll come back and we’ll talk a little bit more about probable cause.

Solari:    Okay.