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Criminal Procedure
Stetson University School of Law
Flowers, Roberta K.

CRIMINAL PROCEDURE

Probable Cause

–          Fourth Amendment:
o       “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.”
§         First Clause (Reasonableness Clause): Provision granting protection from unreasonable search and seizures. 
§         Second Clause (Warrant Clause): Spoke to the General Warrants and the Writs of Assistance. Such warrants must be founded upon probable cause and must provide ample and sufficient description. 
o       If there is a warrant, analysis should be done under the Warrant Clause
o       If there is no warrant, evaluation of the police action must be done under the Reasonableness Clause. 
o       Probable cause is a necessary component of each of the analyses under both of the clauses. 

–          United States v. Draper (U.S. 1959)
o       Facts: A federal narcotics agent had been engaged in an information relationship with a special employee, who would provide the agent with information about drug trafficking. The special employee told the agent that the defendant had gone to Chicago by train and would be returning in a specific timeframe bringing with him three ounces of heroin. He described his appearance, his gait, and what he would be carrying. The agent went to the train station and observed the defendant exactly as the special agent had provided. 
o       The Court held that Brinegar v. United States allowed the agent to rely on the hearsay evidence to support that probable cause existed. Therefore, the police and the courts may rely on hearsay when determining whether probable cause exists. 
§         Definition of “Probable Cause” from Brinegar: “Probable cause exits where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”
o       The Court also held that the agent had, prior to the search and seizure, verified every element of the information provided by the special employee, except for the possession of the heroin. This, therefore, provided enough facts and knowledge to allow the agent to reasonably believe that the defendant was carrying heroin. 
o       The information provided to the agent was reliable in this case because the special employee had been working with the agent for months, had previously been reliable, and the information was actually corroborated (all but the carrying of the heroin). 
o       This case demonstrates what the Court will accept in regards to the quality and quantity of evidence that must be provided in order for a warrantless search and seizure to comport with the Fourth Amendment. 
o       Dissent (Douglas):
§         He believed that the majority decision conflicts with the letter and spirit of the Fourth Amendment. According to Douglas, the agent acted solely on the special employee’s word, which is not enough. He believed that it was only after the arrest and search were made that there was any evidence known to the officers that a crime was in the process of being committed. 

–          State v. Hills (La. 2002)
o       Facts: An individual was arrested for selling cocaine. He provided information about an individual (the defendant) selling larger amounts of cocaine in an apartment above the street. He then described the clothing the defendant was wearing and motioned to where he was located. 
o       The court held that the circumstances established by the information from the individual was sufficiently reliable to provide probable cause to the police to arrest and defendant. The court emphasized that the individual had nothing to gain by fabricating the story and that he would only injure himself further by lying to the cops. 

–          United States v. Florez (Introduction to Dog Sniffs) (N.M. 1994)
o       Probable cause can be provided by dog sniffs. However, the analysis is the same for dogs as it is for human informants. The question is whether the source and the information provided by the source is reliable. 
o       In this case, the court held that the prosecution did not provide the requisite information to establish the dog’s credibility. Such credibility could have been established by adequate and comprehensive records on the dog, including results of controlled alerts made in training and results from actual alerts in the field. Either the records themselves could be admitted or the trainer that kept the records could testify as to the dog’s credibility. 

–          Aguilar v. Texas (U.S. 1964)
o       Facts: Two police officers applied for a warrant to search for narcotics by submitting an affidavit that stated that reliable information from a credible person indicated that drugs could be found on the premises owned by the defendant. 
o       The issue on appeal dealt with the adequacy of the affidavit and whether it could provide the required probable cause for the magistrate to issue the warrant. 
o       Because this is a warrant case, the case should be analyzed under the Warrant Clause, which requires that probable cause support the issuance of the warrant. 
o       The Court reasoned that the magistrate should not have issued the warrant.
o       Warrants are preferred over the lone actions of the police. Great deference should be given to the rulings of the magistrate judge, and courts should sustain the judicial determination so long as there was a substantial basis for the magistrate to conclude that drugs were present. The magistrates must be “neutral and detached” when analyzing whether the underlying circumstances present probable cause. 
o       In this case, the police provided the magistrate with nothing that would allow the magistrate to exercise his independent judgment on whether there was probable cause. For example, there was no information as to the identity of the informant or the basis for that informant’s reliability. 
o       Aguilar Test: “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were and (2) some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable.” 
o       Rule Against Conclusory Affidavits: Use of affidavits that do not establish underlying circumstances would allow police officers to convey their conclusions to another officer, who would then secure the warrant by swearing that he or she had received reliable information from a credible person.
o       Dissent (Clark, Black, Stewart):
§         Probable cause is a fluid concept. The rigid formula used by the Court was inappropriate for the unrigid standard of reasonableness and probable cause laid down by the Fourth Amendment. 

–          Spinelli v. United States (U.S. 1968) 
o       Following Aguilar, the two-prong test had to be strictly followed by the courts. 
o       Facts: The defendant had been suspected of running a gambling operation. He had been watched often traveling between two locations, and he had a small residence with two separate telephone lines. Furthermore, an FBI informant had provided reliable information that the defendant was operating a gambling business. 
o       The Court affirmed its ruling in Aguilar. There must be sufficient information to establish the credibility of the informant and the underlying circumstances (basis of knowledge). If this cannot be satisfied, one can then look at the other aspects of the investigation. If the informant’s i

e inference from the facts that any or all three of the occupants had knowledge of and exercised dominion and control over the narcotics. The officer could reasonably infer a common enterprise among the three individuals. Therefore, the circumstances were enough to establish probable cause. 
·         Probable cause is not the amount of evidence necessary to convict a person of a crime but enough evidence to provide a reasonable belief that a crime has been or is being committed and the evidence must be particularized to a particular individual. McCoun believes this last part is where the case falls apart. Since no one admitted to the ownership of the narcotics, the evidence cannot be particularized toward any of the three individuals. 

–          Cunha v. Superior Court (Cal. 1970)
o       Facts: The police observed what appeared to be a drug transaction between two individuals. They then approached the individuals and arrested them to determine whether or not a drug transaction occurred. They searched the individuals and uncovered narcotics on one of them. 
§         The arrest preceding the search to determine whether a crime has been committed was out of order. There must be probable cause to believe that a crime has been committed before any arrest can occur. 
§         The court focused on the fact that what the cops saw was innocent conduct. 

–          People v. Graham (N.Y. App. 1995)
o       Facts: The police were conducting surveillance of the defendant in a park. Individuals would approach, and he would go over to a bag by a fence and give the person an object from the bag. After the fifth apparent transaction, the cops approached the defendant, searched the bag, and placed him under arrest. 
o       A difference between this case and Cunha was that this was decided under the totality of the circumstances test espoused by the Court in Gates. 
o       The court concludes that probable cause supported the search. According to the court, any person observing the defendant, his five customers, and his method of operation would have, in the totality of the circumstances, concluded that the defendant was involved in the sale of narcotics. 
o       The case demonstrates a clear shift in ideology and law with respect to Cunha.

–          Commonwealth v. Banks (Pa. 1995)
o       Facts: The police officer saw the defendant on a street corner with a woman, where he exchanged money for an unidentified object. As the officer pulled near the corner, the defendant fled. The officer pursued him, captured him, searched him, and found cocaine on his person. 
o       Under the totality of circumstances standard, flight from a police officer is not enough to establish probable cause. This was simply a case where a police officer chanced upon the defendant’s single, isolated exchange of currency for some unidentified item, which took place on a public street corner, and his fleeing when approached by the officer 
o       Flight alone does not constitute probable cause for an arrest. However, flight coupled with additional facts that point to guilt may establish probable cause to arrest. In this case, the flight and additional facts would not satisfy the standard.