Probable Cause for Police to Make an Arrest
Fourth Amendment Considerations & Consequences
Jun 15, 2009
The Fourth Amendment to the US Constitution does not defining the circumstances of an illegal warrantless arrest. Well established law allows an arrest made without a warrant in a public place if probable cause exists. Whether the arrest is for a petty offense, misdemeanor or felony there must be probable cause.
The Fourth Amendment
The Fourth Amendment has relevant language regarding arrests:
“The right of the people to be secure in their persons …shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing … the persons … to be seized.”
Warrantless Arrest Allowed Upon Probable Cause
When the Fourth Amendment was adopted, warrantless arrests were allowed in public when there was a breach of the peace or a felony had been committed. These types of arrests or seizures of the person continue to be allowed under the Fourth Amendment with probable cause.
Arrests in the home, absent consent or exigent circumstances, cannot be made without a warrant.
Fourth Amendment Protections Require an Arrest or Seizure
To implicate the Fourth Amendment a person must be arrested or seized. This not need be a formal arrest, but rather any detention of a citizen by a law enforcement official, however brief, is a seizure for Fourth Amendment purposes.
A person is under arrest or seized when the police detain a person in a way that, to any reasonable person, it is clear he is not free to leave. A person can be "under arrest" without an announcement by the police and without handcuffs physical restraint.
A person is arrested or seized when by any show of authority his liberty is restrained. A traffic stop is an arrest. When a reasonable person does not feel free to leave an arrest has taken place, and for it to be legal there must either be a warrant or probable cause.
Probable Cause Requires More than a Mere Hunch or Suspicion
Neither the Constitution nor any statute gives defines probable cause. Definitions have been developed entirely by the courts. The test to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime.
This test indicates that mere suspicion of a crime is not enough, but the standard for probable cause is a reasonable suspicion of criminality and not actual or certain knowledge.
Requirements of Gerstein v. Pugh
Even though an arrest may be made without a warrant based upon probable cause, such an arrest must be justified to a judge within a reasonable time. The Supreme Court addressed this issue in Gerstein v. Pugh. A person detained without a warrant must be brought before a judge to determine probable cause.
Evidence is given to the judge relating to the probable cause. The Fourth Amendment requires a judicial determination of probable cause even post arrest.
The issues of Gerstein are only two:
- Is there some evidence a crime was committed?
- Is there some evidence that this individual was involved?
Consequences of Arrest without Probable Cause
If an arrest is made without probable cause there are several possible consequences. A wrongfully arrested citizen may sue the government for damages based upon a violation of his civil rights. Another possible consequence is that any evidence that is gathered as a result of the illegal arrest is excluded from use in the prosecution of that person. The manner which this is achieved is by a pretrial motion to quash the arrest and suppress evidence.
Motion to Quash Arrest and Suppress Evidence
If a defendant or his attorney believe the defendant was detained by the police at a time there was no reasonable suspicion of criminal activity, it is appropriate to file a motion to quash arrest and suppress evidence. This asks the judge to determine if there was probable cause for the arrest. If the judge finds there was not, then all evidence after the illegal arrest is excluded from court.
For example, if an individual is stopped for an alleged traffic violation and later charged with driving under the influence and he can show that he did not commit the original violation, then all the evidence gathered related to the DUI cannot be used in court.
The results of the field sobriety tests, the officer’s observations and any chemical testing could not be employed in a trial. The Motion to Quash is one way to enforce the Constitutional right to be free from an unreasonable seizure.
 |
