Probable Cause is the minimum amount of proof the police must already have in order to obtain a warrant to conduct a search for more proof. This means that probable cause is not at the same level needed for a jury to convict a defendant, but sufficient to justify either obtaining a warrant from a judge or for the police to conduct an on the scene search.
“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.?/blockquote>All this leads to the question, “what is a reasonable search or seizure?? A common misconception is that the police must have a warrant to conduct a search. This is not always true. If an officer on the scene observes something that gives probably cause that a crime is being committed, he or she may conduct an on the scene investigation.
For example, if a police officer pulls a car over and smells marijuana through the driver’s window, he or she has probable cause to believe that illegal substances may be in that car. If the officer observes a clear plastic bag protruding from under the car seat, containing what appears to be a green leafy substance, he or she also has probable cause.
On the other hand, if the police receive a complaint from a neighbor that sounds of a struggle, followed by a thud sound came from the apartment above, the police will have to seek a warrant from a judge before conducting a search.
One very interesting case that makes this line between an officer’s powers to search on the scene and the requirement to obtain a warrant is found in the 1948 Supreme Court case, Johnson v. United States. The police, upon receiving a complaint of the smell of opium in the hallway of a hotel, determined that the smell was coming from the hotel room belonging to the defendant.
When the officer knocked on the door and demanded entry, Johnson admitted him to her room and the officer placed her under arrest because of the presence of the opium smell.
The Court later held that
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw upon evidence (in this case the smell of burning opium). It’s protection consists in requiring those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer…any assumption that evidence sufficient to support a magistrte’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Fourth Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.?/blockquote>The courts have, of course, recognized that some circumstances must be balanced with the need to obtain a search warrant. Such as risk of flight or destruction of evidence or risk of harm to a person. This is why the standard for probable cause is much lower in a vehicle than in an apartment or home. A vehicle can flee the scene or enable the suspects to dispose of the evidence before police can obtain a warrant.
What is and what is not, probable cause is an ever-changing concept. For example, searching internet activity and a person’s email communications are even now breaking new legal ground under the Patriot Act. The constant of course is that a warrant must still be obtained in order to conduct a lawful search or seizure under our constitutional ideals.
