Vail Daily column: What is probable cause? |

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Vail Daily column: What is probable cause?

So I think I’m probably right about this; probable cause is one of the cornerstones of our freedoms from government. Before we get on with the specific issue, though, a little context is in order.

The structure of our form of government is one of push and pull, give and take, yin and yang. Okay, that’s not exactly written in the Constitution; in fact a word search turns up neither yin nor its brother yang. But what I mean is that the Constitution giveth and the Constitution taketh. There are both rights and obligations of citizenship.

A good example is the First Amendment right to what is colloquially referred to as “freedom of religion.” And this is apt, but only in part. There is certainly a right to practice one’s religion freely but there is also the right to be free from the state imposing religion upon you. The “establishment clause” of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”. In other words, one may practice one’s religion as one sees fit and the government shall not dictate or impress its religious values on you.

What then about “probable cause?”

The Framers intentionally painted the Constitution in broad strokes, understanding that time and circumstance would require adaptation and extrapolation.

The Fourth Amendment provides 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 seized.”

See them there, towards the back end of the middle; the words “probable cause?” Okay, so let’s define. “Probable cause” is the Fourth Amendment requirement that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts generally find that probable cause exists when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search).

Under some circumstances, probable cause may be dispensed with and a warrantless search or seizure may be conducted. Persons arrested without a warrant must be promptly brought before the court to insure that their Fourth Amendment rights have not been violated and there is a reasonable basis for a determination of probable cause.

Although the Fourth Amendment states that “no warrants shall issue, but upon probable cause,” like much of the Constitution, the blanks are meant to left filled in by circumstance and judicial interpretation. This is not by accident. The Framers intentionally painted the Constitution in broad strokes, understanding that time and circumstance would require adaptation and extrapolation.

The Fourth Amendment simply does not specify of what “probable cause” actually consists.

On several occasions, the Supreme Court has tried to fill in the dots and clarify the meaning, recognizing that the concept that is—by design–imprecise, fluid and dependent on context and the nearly infinite precise circumstances that may present themselves.

In Illinois v. Gates, a 1983 case, the Supremes adopted a flexible approach, viewing probable cause as a “practical, non-technical” standard that calls upon the “factual and practical considerations of everyday life on which reasonable and prudent men […] act”. Hmmm; not much guidance there. Essentially, Gates adopted an “I know it when I see it” approach.

Courts have often adopted a more expansive view of probable cause when the alleged offense is serious.

In the context of arrest, the Fourth Amendment requires probable cause even when the arrest is made pursuant to an arrest warrant. Whether or not probable cause exists depends on the totality of the circumstances, meaning everything that the arresting officers know or reasonably believe at the time the arrest is made. However, “reasonableness” is a chameleon colored by the specific circumstances.

A lack of probable cause will render a warrantless arrest invalid, and any evidence resulting from that arrest will be suppressed. This “exclusionary rule” will bar the introduction of evidence that flowed from the arrest, including physical evidence, inculpatory statements or confessions.

In the circumstance of law enforcement searches, probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered. In the case of a search pursuant to a warrant, an affidavit must support the warrant by indicating on what basis probable cause exists. A judge may issue a search warrant if the affidavit in support of the warrant offers sufficient information to establish probable cause.

For a warrantless search, probable cause can be established by in-court testimony after the search.

The protections against unreasonable searches and seizures codified in the Fourth Amendment directly reflect the new American nation shrugging off the bounds of what it saw as British repression. If the government was to act against a citizen, it would have to do so pursuant to established rules, concepts of reasonableness and fairness.

Probable cause is a check against state zealotry and police aggression and makes each of us more secure in his person and his home.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at and