What Is Probable Cause?

Posted on Sep 10, 2019 in Criminal Defense

Let’s talk about probable cause. What it is, when the police need it and what it means if you’ve been arrested in Louisiana.

When do the police need probable cause?

Simply put, the police can only arrest you in Louisiana under two circumstances—if they have a warrant or probable cause to believe you’ve committed a crime. A law enforcement official must convince a judge that probable cause exists to obtain a warrant.

What’s the difference between reasonable suspicion and probable cause?

Let’s back up a bit. It’s important to understand the difference between a stop and an arrest. The police can briefly stop you based on “reasonable suspicion” that some kind of criminal activity is afoot—think of this as something akin to a strong, sensible hunch. The police can’t invent facts to justify a stop, but courts offer law enforcement a fair bit of discretion at this point. The law permits a police officer to pat you down for weapons after this kind of stop.

How is this different from probable cause?

The legal justification for an arrest rests on the concept of probable cause. The police must have more than an educated hunch that something untoward is going on to arrest you. Law enforcement officials need probable cause to believe that a crime was committed and that a specific person was involved with the commission of that crime to lawfully execute an arrest. The standard is higher than that needed for a stop.

Can you give me a few examples?

Yes. Say the police stop a car for speeding. Four people are in the vehicle. During the stop, an officer sees a bag of cocaine on the console between the driver and the passenger. In these sorts of circumstances, the police frequently claim probable cause exists to arrest everyone in the vehicle.

Here’s another example. A man calls 911 to report a residential break-in. The caller reports he saw a man with long blond hair escaping through the back window of his house. The alleged victim also states his prized Journey CD collection, housed in a green Thom McCann shoebox, appears to be missing. Information about the alleged robbery goes out over the police scanner—all on-duty law enforcement officials are aware of the report.

An hour or so later, about 3 miles from the break-in, the police stop a car for running a stop sign. As they approach the vehicle, they see a man with long blond hair who appears to be rocking out to “Don’t Stop Believin.’” While waiting for the gentleman to produce his driver’s license and insurance information, the officer notices a green Thom McCann shoebox full of CDs on the passenger seat. Journey’s Greatest Hits Live, Escape and Evolution CD cases lie strewn next to the shoebox. The police take the long blond-haired man into custody, sighting probable cause for his arrest.

Who determines whether or not the police had probable cause?

In Louisiana, a judge or magistrate has final say on the matter. The Louisiana Code of Criminal Procedure lays out how this process takes place. It entitles people in custody to a probable cause review within 48 hours of arrest. This is only true if the police execute a warrantless arrest. In most cases, the arresting officer must submit an affidavit describing what led to the arrest. A magistrate will then review the officer’s statement and determine whether or not a reasonable person in the officer’s position could have come to the conclusion that the person arrested committed a crime.

Most people charged with a felony have the right to a preliminary hearing, during which a judge will make a ruling regarding the existence of probable cause. The prosecution will call witnesses, and the defendant has the right to conduct cross-examination during the proceeding. The burden of proof is lower than the beyond a reasonable doubt standard in effect during a trial, the court can consider hearsay evidence and the law essentially requires judges to give law enforcement officials the benefit of the doubt at this stage.

If a judge finds the police had probable cause, does that mean I’m guilty?

Absolutely not. It simply means that a court looked at the events surrounding your arrest and determined that a reasonable person could deduce that a crime had occurred and that you were involved in that crime. Because the standard of proof heavily favors the prosecution at this point, it’s extremely difficult to get a case thrown out for lack of probable cause.

So why should I bother hiring an attorney if the court is going to find against me anyway?

If you’ve been charged with a felony and have the right to a preliminary hearing, it’s critical to hire an attorney well before your next court date. Preliminary hearings provide a golden opportunity to lock-in police testimony before trial. Your defense attorney will begin gathering evidence and interviewing witnesses as soon as you become a client—collecting critical information that could prove useful in plea negotiations and at trial. Finally, an experienced criminal defense attorney will make sure you don’t unwittingly waive any rights—a critical issue when it comes to building a compelling appellate case.

We at Bloom Legal believe everyone has the right to understand what’s going on every step of the way when dealing with a criminal charge. We’re here to help. Schedule a free consultation with one of our experienced New Orleans criminal defense attorneys if you’d like to sit down and discuss your case.

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