Term Paper on "Arrest Search Warrants and Probable Cause"

Term Paper 4 pages (1556 words) Sources: 1+

[EXCERPT] . . . .

Arrest, Search Warrants and Probable Cause law enforcement officer has probable cause to arrest a defendant for armed assault, and he also has probable cause to believe that the person is hiding in a third person's garage, which is attached to the house. Assuming that the owner is not available to give his or her consent to enter the garage, the officer needs an arrest warrant to enter the garage to search for the suspect. An arrest warrant is a warrant issued by a judge, which authorizes the arrest and detention of an individual. An arrest warrant must be supported by a signed and sworn affidavit showing probable cause that a specific crime has been committed, and the person(s) named in the warrant committed said crime.

If the facts were altered and the defendant is known to be injured and unarmed, the officer would not need a warrant. He could claim that not to enter the garage would place the suspect at risk from his injury. If the officer was in "hot pursuit" this would alter the officer's need for a warrant. There typically exist exemptions for "hot pursuit." If a criminal flees the scene of a crime and the police officer follows him, the officer has the right to enter an edifice in which the criminal has sought shelter. The decision in Terry v. Ohio (1968) established that some brief seizures may be made without probable cause. If an officer has a reasonable suspicion that a crime has been committed or will soon be committed, that officer may briefly detain a suspect to frisk him for weapons and question him. This is known as a "Terry stop." The case of Wong Sun v. U.S. (1963) covered suspects who run out the side or back door as sufficient for probable cause, however, and there have been other cases in which suspicious behavior like dropping packages or using phones but not talking, have held up.

The Supreme Court decision Illinois v. Gates (1983) lowered the threshold of probable cause by ruling that a "substantial chance" or "fair probability" of criminal activity could establish probable cause. Justice Rehnquist argued that the "totality-of-the-circumstances" approach to probable cause was the correct one. A better-than-even chance is not required.

The most widely held common definition of probable cause is "a reasonable belief that a crime has been committed." This definition has been criticized for being an example of circular reasoning, especially in the phrase "probable cause to believe that." In the context of warrants, the Oxford Companion to American Law defines probable cause as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)." Probable cause is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction. Even hearsay can supply probable cause if it is from a reliable source or is backed up by other evidence.

The Illinois v. Rodriguez case of 1990 established that a factual error made by an officer, if it was a reasonable mistake under the circumstances, does not invalidate probable cause nor invalidate any evidence obtained.

A circumstance in which there would be probable cause to search, but not probable cause to arrest would be the following. The police receive a telephone call from a citizen who is a maintenance person at an apartment building. During a routine inspection of the apartment, which is vacant, the maintenance person discovered what he believed to be drugs, lying in plain sight. The maintenance person is not employed by the owner of the apartment building and does not have the authority to give permission for others to be in the apartment. The police would have probable cause for a search warrant for the premises, but not an arrest warrant.

A circumstance in which there is probable cause to arrest but not probable cause to search, would be the following. A police officer witnesses a suspect steal the purse of a woman on the street. The suspect flees into a private dwelling, with the officer in pursuit. The officer catches the suspect and detains him in possession of the purse. The officer has probable cause to arrest the suspect, but not probable cause to search the premises. The officer's search is limited to the suspect himself.

A circumstance in which there is probable cause to arrest and probable cause to search would be the following. The suspect is stopped in his car as the result of running a red light. As the officer approaches the car to question the suspect about his driving, he notices what appears to be a large quantity of marijuana in a plastic bag in plain sight on the floor of the front seat next to the driver. When he approaches the driver, he also notices a pungent odor coming from the car, which he identifies as marijuana. At this point, the officer has probable cause to both arrest the driver and to search the car.

Mr. A walks into a police station, drops three wristwatches on a table, and tells an officer that Mr. B robbed a local jewelry store two weeks ago. Mr. A will not say anything else in response to police questioning. A quick investigation reveals that the three watches were among a number of items stolen in the jewelry store robbery. The police have probable cause to arrest Mr. A and enough probable cause to draft an affidavit for the arrest of Mr. B. They also have sufficient probable cause to seek a search warrant for both Mr. a's house and Mr. B's house.

All jurisdictions put constraints on the rights of police investigators, and typically require search warrants, or an equivalent procedure, for searches within a criminal enquiry. A search warrant is a written warrant issued by a judge or magistrate, which authorizes the police to conduct a search of a person or location for evidence of a criminal offense. Under the Fourth Amendment to the United States Constitution, most searches by the police require a search warrant. In order to obtain one, an officer must first prove that probable cause exists, although this can be based on hearsay evidence and can even be obtained by oral testimony given over a telephone. Both property and persons can be seized under a search warrant. Under the Fourth Amendment searches must be reasonable and specific. This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Other items, rooms, outbuildings, persons, vehicles, etc. would require a second search warrant. Shown below is an affidavit for a search warrant for Mr. B's premises. The affidavit for Mr. a's premises would be similar.

Affidavit for 6/13/05 search warrant to search 678 Oak Street, Collingswood

AFFIDAVIT

I, John Smith, being duly sworn, depose and state:

That I am a Detective employed by the Collingswood Police Department, and that I have been so employed for the past 10 1/2 years.

That as a result of my training and experience as a police officer, I know that it is unlawful for a person to knowingly possess proceeds from a crime, to wit: the armed robbery of a jewelry store, Wright's Jewelry, on June 3, 2005, located at 1234 Spruce Street, Collingswood. The proceeds were several rings and watches valued in excess of ten thousand dollars ($10,000).

That on June 5, 2005, Mr. A did voluntarily enter the police station located at 456 Elm Street and present three watches, valued at three thousand dollar ($3,000). These watches were subsequently identified as watches taken in the armed robbery on June 3,… READ MORE

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