Chapter 1: Principles of Probable Cause and Reasonable Suspicion
Chapter structure
(1) The Required Probability
(2) Facts: The Lifeblood of Probable Cause
(3) Evaluating the Facts
(4) The “Official Channels” Rule
(5) Mistakes of Fact and Law
Related subjects covered elsewhere
Reliability of information Chapter 2 Probable Cause: Reliability of Information
Probable cause to arrest Chapter 3 Probable Cause to Arrest
Reasonable suspicion Chapter 3 Probable Cause to Arrest
Probable cause to search Chapter 4 Probable Cause to Search
Marijuana possession Chapter 22 Marijuana Searches
Definitions
Probable cause to arrest: Probable cause to arrest exists if there was a “fair probability” or “substantial chance” that the arrestee had committed the crime under investigation. See “The Required Probability” (Probable cause), below; and Chapter 3 Probable Cause to Arrest.
Probable cause to search: Probable cause to search a person, place or thing exists if there was a “fair probability” or “substantial chance” that specified evidence of a crime is now located there. See “The Required Probability” (Probable cause), below, and Chapter 4 Probable Cause to Search.
Reasonable cause: The terms “probable cause” and “reasonable cause” are synonymous.[1]
Reasonable suspicion to detain: Like probable cause to arrest and search, reasonable suspicion to detain or pat search is a judgment as to the existence and significance of incriminating evidence. The main difference is that reasonable suspicion may be based on information that is less incriminating and reliable than that which is required for probable cause.[2] Most of the principles that apply to probable cause also apply to reasonable suspicion.
The Required Probability
Probable cause: It is often assumed that probable cause requires at least a 51% chance because anything less would not be statistically “probable.” Although the Supreme Court has refused to assign a probability percentage (because it views probable cause as a non-technical standard based on common sense, not mathematical precision[3]), it has ruled that probable cause requires less than a 50% chance. Specifically, it ruled that probable cause requires neither a preponderance of the evidence (i.e. over 50%)[4] nor “any showing that such belief be correct or more likely true than false,”[5] and that it requires only a “fair probability or “substantial chance.”[6]
Reasonable suspicion: Reasonable suspicion requires only a “moderate chance,” which has been unhelpfully defined as something “considerably less” than a 50% chance.[7] A better definition is that reasonable suspicion exists if the circumstances were “consistent with” criminal activity.[8]
Facts: The Lifeblood of Probable Cause: The first thing (and sometimes the only thing) the courts look for in determining if there was probable cause is the factual basis for the officer’s belief that it exists. In fact, the Supreme Court has called this the “central teaching of this Court’s Fourth Amendment jurisprudence,” explaining that officers “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”[9]
Reliability of Information: Information is not factual unless there was reason to believe it was accurate. See Chapter 2 Probable Cause: Reliability of Information.
Circumstantial evidence: Probable cause may be based partly or solely on circumstantial evidence; i.e., facts from which the existence of probable cause may be inferred.[10]
Hunches and unsupported conclusions: Although hunches often play an important role in criminal investigations,[11] they are not facts and are therefore irrelevant.[12]
Information inadmissible in court
Hearsay: Hearsay may be considered,[13] but its value depends on whether there was reason to believe that it, or its source, was reliable.[14]
Privileged information: May be considered.[15]
Information obtained illegally: Will not be considered by a court in determining the existence of probable cause if it was obtained in violation of the suspect’s constitutional rights, as opposed to a violation of a state or federal statute.[16] Also see Citation Guide (Proposition 8).
Facts obtained from other officers: See “The ‘Official Channels’ Rule,” below.
Officer’s legal opinions: Although officers may make reasonable inferences, they must not provide legal opinions in their affidavits or courtroom testimony as to the significance of the facts; e.g., “These facts constitute probable cause,” or “My informant is reliable.”[17] Statements of this sort should also be avoided because they may signal a lack of training or professionalism.
Evaluating the Facts: Having ascertained the relevant facts, the courts must determine whether they add up to probable cause. Although this process is highly subjective, there are certain rules that apply, as follows:
Totality of facts: Probable cause and reasonable suspicion are based on an assessment of the overall force of the facts.[18] Thus, judges must not isolate individual facts, belittle their importance or explain them away, then conclude that probable cause did not exist because none of them were very significant.
Commonsense interpretation: The facts must be examined in light of common sense and reasonable inferences, not hypertechnical analysis.[19]
Training and experience: The courts will consider an officer’s opinion as to the meaning or significance of facts if the opinion appeared to be reasonable.[20] An officer’s opinion may have weight even if he had not qualified as an expert witness in court.[21] In listing an officer’s training and experience in an affidavit, a lengthy or detailed account is seldom necessary.[22]
Significance of multiple incriminating circumstances: The odds of having probable cause increase dramatically as the number of independent incriminating circumstances increase. To illustrate, if probable cause and reasonable suspicion could be tallied on a scorecard, and if a suspect on the street matched a general description of the perpetrator of a robbery that had just occurred nearby, we would start by giving him a PC score of two: one point because he resembled the robber and a second point because he was near the crime scene shortly after the robbery occurred. But he would also be entitled to a bonus point because the combination of these two independent circumstances is, in effect, an additional incriminating circumstance because it constitutes a “coincidence of information.”[23] In other words, when it comes to probable cause, “the whole is greater than the sum of its parts.”[24] See this endnote for examples of multiple incriminating circumstances.[25]
Possibility of an innocent explanation: It is immaterial that there might have been an innocent explanation for some or all of the circumstances upon which probable cause was based.[26]
Considering exculpatory facts: If probable cause exists, officers are not required to conduct an additional investigation to determine if there were other facts that might undermine probable cause.[27] Still, officers are “not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists.”[28]
The “Official Channels” Rule: Probable cause may be based partly or solely on information obtained by officers via “official channels.”[29] Although officers may rely on such information, prosecutors may be required to prove that the information was accurate or reliable. See Chapter 67 Motions to Authenticate Information Source (Harvey-Madden).
What is an “official” channel? An official channel is a conduit through which information pertaining to the existence of probable cause or reasonable suspicion is routinely transmitted from one officer to another, or from a governmental agency or database to officers. Such transmissions may be formal or informal.
Formal official channels: These are well-known conduits whose primary objective is to transmit such information; NCIC, CLETS, AWS, BOLO, database communications, wanted flyers, and rollcall notifications.
Informal official channels: Information may also be transmitted on-the-fly via impromptu exchanges between officers about criminal activity, a particular crime, or a particular suspect. These communications are usually transmitted via police radios, cellphones, text messages, and face-to-face conversations.
Proof of “transmission”: The official channels rule applies only if prosecutors can prove that the information had been transmitted to, and received by, the officer who made the arrest or conducted the search.[30]
No imputed transmission: The official channels rule is sometimes referred to as the “collective knowledge” or “constructive knowledge” rule. This is misleading because it suggests that information possessed by one officer may be imputed to others without proof of transmission. This is called “post-arrest pooling” and it is not permitted.[31]
Types of transmitted information: There are two types:
Summary notifications: These are simple notifications that certain facts have been ascertained; e.g., that a warrant for the suspect’s arrest was outstanding, that the suspect was subject to parole or probation searches, that DMV records showed that a driver’s CDL was suspended.[32]
Transmission of information: These are transmissions of factual information; e.g., a physical description of the perpetrator of an armed robbery. See Chapter 2 Probable Cause: Reliability of Information (Law Enforcement Personnel).
Mistakes of Fact and Law
Mistakes of fact: If probable cause was based in whole or in part on information that was later determined to be false, the information may nevertheless be considered in determining the existence of probable cause if the officer reasonably believed it was true.[33] Examples:
Arrest of wrong person: If officers had probable cause to arrest a suspect but arrested another person by mistake, the arrest is lawful if they reasonably believed the arrestee was the suspect.[34]
Mistakes by automated license plate readers: Because automated license plate readers may misread license plate numbers, it may be unreasonable for officers to rely solely on such an alert to detain someone; e.g., officers may need to confirm that the license plate number on the stopped vehicle matched the number displayed by the reader.[35]
Mistakes of law
Reasonable mistakes: Suppression may not be appropriate if the mistake of law was reasonable.[36]
Arrest for wrong crime: See Chapter 5 Arrests (Notification Requirements, Specify crime).
No proof beyond a reasonable doubt: A search or seizure supported by probable cause is lawful, even if prosecutors refused to charge the suspect, or if a jury acquitted him.[37]
Notes
[1] USSC: Heien v. North Carolina (2014) 574 US 54
[2] USSC: Arizona v. Johnson (2009) 555 US 323, 330 [a reasonable suspicion of criminal activity is one that is “reasonably grounded, but short of probable cause”]. ALSO SEE: P v. Ledesma (2003) 106 CA4 857, 863 [“reasonable suspicion is an abstract concept, not a ‘finely tuned standard’ and deliberately avoided encumbering its determination with a neat set of legal rules”].
[3] USSC: Maryland v. Pringle (2003) 540 US 366, 371 [“The probable cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances.”]; US v. Sokolow (1989) 490 US 1, 7 [reasonable suspicion “is not readily, or even usefully, reduced to a neat set of legal rules”]. OTHER: US v. Baker (6C 2020) 976 F3 636, 645 [the Supreme Court “has refused to offer clear rules separating the hazy border between suspicion and probable cause”]; US v. Melvin (1C 1979) 596 F2 492, 495 [“appellant reads the phrase ‘probable cause’ with emphasis on the word ‘probable,’ and would define it mathematically to mean ‘more likely than not’ or ‘by a preponderance of the evidence.’ This reading is incorrect.”].
[4] CAL: P v. Westerfield (2019) 6 C5 632, 659] [probable cause “is less than a preponderance of the evidence or even a prima facie case”]; P v. Carrington (2009) 47 C4 145, 163 [“The showing required in order to establish probable cause is less than a preponderance of the evidence or even a prima facie case.”]. OTHER: US v. Garcia (5C 1999) 179 F3 265, 269 [“more than bare suspicion, but need not reach the fifty percent mark”]; US v. Ortiz (4C 2012) 669 F3 439, 446 [probable cause “is less demanding than a standard requiring preponderance of the evidence”]. ALSO SEE: Herring v. US (2009) 555 US 135, 139 [“The very phrase ‘probable cause’ confirms that the Fourth Amendment does not demand all possible precision.”]; Valdez v. McPheters (10C 1999) 172 F3 1220, 1227, fn.5 [“probable cause itself is a relatively low threshold of proof”]; US v. $42,500 (9C 2002) 283 F3 977, 980 [“probable cause is not an exacting standard”].
[5] QUOTE FROM: Texas v. Brown (1983) 460 US 730, 742.
[6] QUOTES FROM: Safford Unified School District v. Redding (2009) 557 US 364, 371. USSC: Illinois v. Gates (1983) 462 US 213, 243, fn.13. CAL: Bailey v. Superior Court (1992) 11 CA4 1107, 1111 [“Probable cause to issue an arrest or search warrant [exists if] there is a fair probability that a person has committed a crime, or a place contains contraband or evidence of a crime.”]; P v. Rosales (1987) 192 CA3 759, 767-68 [the “fair probability” standard applies to both probable cause to search and probable cause to arrest]. 9th CIR: Garcia v. County of Merced (9C 2011) 639 F3 1206, 1209 [“All that is required is a ‘fair probability’”]. OTHER: US v. Centeno-Gonzalez (1C 2021) 989 F3 36, 45 [probable cause “does not require law enforcement officers to have an ironclad case on the proverbial silver platter”]; US v. Howard (7C 2018) 883 F3 703, 707 [“Probable cause does not require an actual showing of criminal activity, or even that the existence of criminal activity is more likely true than not; instead, probable cause merely requires that a probability or substantial chance of criminal activity exists.”]. NOTE: “Honest and strong suspicion”: In the past, the courts would say that probable cause to arrest requires an “honest and strong suspicion” that the suspect had committed a crime. This definition is seldom used. See Peng v. Hu (9C 2003) 335 F3 970, 976 [the “honest and strong suspicion” test and the “fair probability” test are “very similar”].
[7] USSC: Kansas v. Glover (2020) __ US __ [140 S.Ct. 1183] [reasonable suspicion “falls considerably short of 51% accuracy for, as we have explained, ‘to be reasonable is not to be perfect’”]; Safford Unified School District v. Redding (2009) 557 US 364, 371 (“moderate chance”); Illinois v. Wardlow (2000) 528 US 119, 123 [“‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence”]; US v. Arvizu (2002) 534 US 266, 274 [reasonable suspicion “falls considerably short of satisfying a preponderance of the evidence standard”]; Alabama v. White (1990) 496 US 325, 330 [“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.”]. OTHER: US v. Jeter (6C 2013) 721 F3 746, 751 [“Reasonable suspicion exists where the officer can articulate specific, particularized facts that amount to more than a ‘hunch’ that criminal activity may be afoot.”]; US v. Santillan (2C 2018) 902 F3 49, 56 [“The reasonable suspicion standard is not high and is less demanding than probable cause, requiring only facts sufficient to give rise to a reasonable suspicion that criminal activity may be afoot.”]; US v. Latorre (10C 2018) 893 F3 744, 751 [“reasonable suspicion may exist even if it is more likely than not that the individual is not involved in any illegality. This is because reasonable suspicion requires considerably less than proof of wrongdoing by a preponderance of the evidence”]. NOTE: Officers may detain two or more people for a crime committed by only one person if reasonable suspicion exists for each. P v. Rodriguez (1987) 196 CA3 1041, 1048. NOTE: Reasonable suspicion is also known as “reasonable cause,” “particularized suspicion,” “articulable and individualized suspicion,” and “founded suspicion.” See In re Randy G. (2001) 26 C4 556, 567.
[8] QUOTE FROM: P v. Souza (1994) 9 C4 224, 233 [“when circumstances are consistent with criminal activity, they permit—even demand—an investigation”]. CAL: Kodani v. Snyder (1999) 75 CA4 471,476-77.