What is Probable Cause?
https://chriswhitelawyer.com/probablecause/
What is Probable Cause?
What is Probable Cause?
Don’t know? Don’t worry even the people that are supposed to know, don’t. Like the Lynchburg City Police Department. Certainly, if you have been charged with crime, you should call me for a free consultation (434) 660-9701 I am a Criminal Defense Attorney.
It must be noted that most of the information from this article is from Attorney Robert Battle’s Book “Virginia DUI Defense: The Law and Practice.” (2011). This book along with my extensive legal education including a B.S. in Criminal Justice, LL.M. In International Law and Doctorate in Jurisprudence was used to write this article.
The Importance of Probable Cause:
Consequently, probable cause is the legal standard that a law enforcement officer must be able to articulate before a law arrest can be conducted. Without the standard of probable cause, no citizen can be safe that the government will follow the law. What is unfortunate is that those enforcing the law often do not seek to actually follow the law.
Presumption:
At court, it is the government’s burden to show that probable cause to arrest existed. Accordingly, what that means is that the government has to convince the judge that probable cause existed. In contrast, it is not the accused burden to prove probable cause did not exist. Certainly, the accused has a right to rebut anything the government brings forth as evidence.
This is an important distinction to make. Because, without it being the burden of the government to prove probable cause existed then no one would be safe. Basically, we would have a society where warrantless searches and seizures would be endless. What is really scarry today is the rubber stamping of warrants without real evidence being put forth that judicial officers engage in. If the individual citizen is not safe from unconstitutional government intrusion, then no citizen is.
Probable Cause Standard:
Probable cause is what a government official must have before engaging in a warrantless search. “A warrantless search is presumptively unreasonable under the Fourth Amendment “subject only to a few specifically established, jealously and carefully drawn exceptions” Jones v. United States When the Constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would “warrant a man of reasonable caution in the belief” that an offense has been committed. Carroll v. United States” Id. at 34.
Coincidentally, the circumstances that tend to show that there is not probable cause, your attorney should argue that to the court. What is unfortunate is this standard of “good faith” that your defense attorney is held to but not the local prosecutors office. This is unfortunate because your fighting uphill. Certainly, for this reason you will want to find a good Criminal Defense Attorney to represent you.
Probable cause precursor:
Furthermore, reasonable suspicion is a precursor requirement to probable cause. In other words, the government must have a reasonable suspicion to justify an investigatory stop. Reasonable suspicion is not probable cause, these are two separate standards. Sequentially, the legal standard of reasonable suspicion must be present in order for a law enforcement officer to move to the next step of the investigation and look for probable cause. Often, reasonable suspicion in a traffic stop is usually some sort of “moving violation.” Accordingly, illegal act or infraction with your vehicle. If you have been charged with a crime, you should call a Criminal Defense Attorney.
“Warrant a man of reasonable caution in the belief”
Basically, the legal standard of probable cause boils down to “whether the facts available to the officers at the moment of arrest would warrant a man of reasonable caution in the belief that an offense has been committed.” Carroll v. United States.
Furthermore, the law enforcement officer or government official must be able to articulate these facts and circumstances. Subsequently, vast generalizations will not be acceptable to a court. Finally, “If the police had clearly insufficient evidence to believe that an offense had been committed, then the seizure was without probable cause.” Id. at 34.
The court must separate the facts and circumstances that the government officer had before the arrest and what he had after the arrest.Certainly, this is vital to a proper probable cause determination analysis. If the Court, after conducting their analysis, would have not issued a warrant for arrest had one been requested then probable cause did not exist.
Factors held not sufficient for Probable Cause in Virginia:
- Odor of alcohol. (Baker v. Taylor)
- Demeanor. (Clemmer v. Commonwealth)
- General observations as effects of alcohol. (Davis v. Commonwealth)
If you have been arrested you should call me for a free consultation, I am a Criminal Defense Attorney (434) 660-9701
Comments
Post a Comment