What counts as probable cause?

Pi1otguy

Pi1otguy

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http://www.philly.com/philly/news/20101128_ap_carstopinsoutheastpanets12mofcocaine.html
article said:
Clee said he saw rubber bands in the car commonly used to package stacks of money, and the car was searched.
Police said they found the hidden cocaine and $3,000 cash inside.
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Assuming you're already interacting with the police, what counts as probably cause? Rubber bands seems kind of flimsy.


And by implying that criminals use rubber bands to sort large amounts of cash, does that imply that carrying large amounts of cash is evidence of criminality? Surly some of us here have carried around a few thousand dollars on them at one time or another.
 
I imagine it may be up to a judge, but I thought the law had changed allowing the cops to use the evidence even if the PC was bunk. SC ruling if I am recalling correctly.
 
If the police can articulate why rubber bands made them believe that there was probably criminal activity afoot, and the judge is convinced, the contraband can be used as evidence.

I'm not aware of any SCOTUS rulings overturning the exclusionary rule, and allowing evidence to be used that was illegally seized.
 
Pi1otguy said:
http://www.philly.com/philly/news/20101128_ap_carstopinsoutheastpanets12mofcocaine.html



Assuming you're already interacting with the police, what counts as probably cause? Rubber bands seems kind of flimsy.


And by implying that criminals use rubber bands to sort large amounts of cash, does that imply that carrying large amounts of cash is evidence of criminality? Surly some of us here have carried around a few thousand dollars on them at one time or another.
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This is a straight quote from the Colo. Supreme Court, and Colo. follows the national rule. There's a little bit more to it, but this is the overall gist:

Probable cause for an arrest exists when there is a fair probability that the defendant has committed, is committing, or is about to commit a crime.
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So, if the police officer can make a connection between rubber bands, illegal activity, and this defendant, there's a case to be made.

My bet would be that the police officer saw the rubber bands, got a hunch, and asked, "hey, would you mind if I searched your car." The defendant probably said, "sure, go ahead."

Cause or not, if you voluntarily consent to a search - or pretty much anything else - it's valid.

But, if all that happened was "I saw rubber bands and therefore suspected criminal activity," no way. Period. And I'm comfortable saying that as a matter of law.
 
Sheesh, in rural places that better not fly - I saw a guy yesterday with a hundred rbands on his turn signal...I said, Hey, just like me - you must get your mail rural delivery too' Yup.
 
steingar said:
I imagine it may be up to a judge, but I thought the law had changed allowing the cops to use the evidence even if the PC was bunk. SC ruling if I am recalling correctly.
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The 4th Amendment is more akin to incredibly thin Swiss cheese. It's full of holes, and even when there's not a hole it's really flimsy.

I'm not sure if you're referring to the Supreme Court or South Carolina, but an interesting example is from the Supreme Court in a case originating in South Carolina. The following's from memory, so I might have a few particulars wrong, but you'll get the overall idea. The name of the case is something like State [or S. Carolina] v. Some kind of fish [maybe Trout, but might be Herring]. And now you see how my cluttered brain works. :)

Summarized, an arrest warrant for a particular person had been cancelled by a judge - I believe that it had been mistakenly issued, but regardless it was an invalid warrant once it was cancelled/vacated. But, in a mistake that may or may not have been in good faith, the local sheriff's office did not take it out the computer even though it had received a copy of the order vacating the warrant.

So, the defendant is stopped in a car for some reason. Warrant is not valid, no warrant actually exists. Nevertheless, the deputy/detective on the scene - who if I remember correctly had repeated run-ins with the defendant in the past - thought there was a warrant because the police computer said there was. Defendant arrested, a subsequent search uncovered some kind of contraband.

The question for the USSC: Should the evidence found have been excluded under the 4th Amendment?

The answer: a whopping NO. Evidence is only excluded under the 4th Amendment when exclusion would serve to deter future police misconduct. The USSC determined that because this was just a mistake, it wouldn't serve to deter any future misconduct.

So, here's where one of the biggest holes in the 4th Amendment is: its applicability doesn't turn on its violation, but rather on whether applying it would deter police misconduct in the future.

Again, it's been a year or two since I looked at the case, and I think I only skimmed it in disbelief (even though I already knew the answer before I read it) when I did, so take this recitation with a grain of salt.

But that's the gist of what happened.

Sorry if I've managed to get this thread sent to the SZ, but I personally feel that the extent of legal rights is something that all of us have an interest in being aware of.
 
Obi Heed Kenobi said:
...

The name of the case is something like State [or S. Carolina] v. Some kind of fish [maybe Trout, but might be Herring]. And now you see how my cluttered brain works. :)

....
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It's Herring v. U.S. I was close, I guess.

In case anyone's interested:

http://www.supremecourt.gov/opinions/08pdf/07-513.pdf

You can just read the syllabus on the first few pages to see what happened. Not necessary to read the whole thing unless you're really interested in the detailed facts (which are enlightening).
 
Obi Heed Kenobi said:
So, if the police officer can make a connection between rubber bands, illegal activity, and this defendant, there's a case to be made.
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That's one heck of a game of connect the dots. Using this logic, the officer is essentially implying that handling large sums of cash is an indicator of criminal activity.

rubber bands -> cash -> illegal activity

Using that logic, if several tenants pay a landlord in cash one day and he interacts with the police they have probable cause.

My bet would be that the police officer saw the rubber bands, got a hunch, and asked, "hey, would you mind if I searched your car." The defendant probably said, "sure, go ahead."
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I never understood that. Why let them search if you know you got something? It's not like the officer is going to let 26 lbs of coke get off with a warning.[/QUOTE]
 
Pi1otguy said:
That's one heck of a game of connect the dots. Using this logic, the officer is essentially implying that handling large sums of cash is an indicator of criminal activity.

rubber bands -> cash -> illegal activity

Using that logic, if several tenants pay a landlord in cash one day and he interacts with the police they have probable cause.
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I agree.

Just keep it in mind, though. The weakest link theory applies - the system is only as good as it is at its worst.

I never understood that. Why let them search if you know you got something? It's not like the officer is going to let 26 lbs of coke get off with a warning.
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Oh, it's a frequent source of puzzlement to me as well. I simply don't understand the mindset.

But you would be amazed at the amount of criminal activity uncovered. It's just amazing. To the point that I've wondered whether big-time drug runners purposefully send their dumber mules with relatively small amounts of drugs through an area late at night at a high rate of speed with a taillight out in a Honda Civic, with instructions of "yes, consent, they'll go easy on you and I'll pay you well" - the police get their big headline, and the pickup-load goes through unmolested doing the speed limit in broad daylight.
 
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IIRC Philly is unique in that there is a law that puts simple possession of drug paraphernalia as PC. Rubber bands, lots of balloons, and mini ziploc bags are considered paraphernalia under their law. There was a nasty expose of the vice squad abusing this law to rip off (steal money and products from) bodegas a while back...
 
This actually isn't in Philly but in Bensalem Township Bucks County. I have had some interesting cases out of Bensalem which does border Philly. I can only hope this guys relatives call me:wink2:. Keep in mind that the facts of any case as printed in the media often don't have much of a resemblance to the facts as either occured or as are alleged. But given that fact scenario I could have a very good time with this case, starting with the stop. If the stop is bad then it dosen't matter whether he had his back seat piled with a bale of pot.
 
Steve Foley said:
I'm sure he was driving erratically, or crossed a solid line (while going around a parked cruiser)
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Another case worth reading is Atwater v. City of Lago Vista.

Summarized: presuming I have no actual probable cause to do a search of you or your car, I can get in through the back door (please, no TSA jokes) by putting you under arrest and doing a search incident.

So, let's say it's a criminal offense to not wear a seatbelt. I pull you over, see you're not wearing a seatbelt. Because I'm a jerk, I think that all kids your age are probably running drugs. Even though for most people I wouldn't, I decide to arrest you because I can. Not wearing a SB is in no way probable cause for a search of either you or your vehicle. Yet, because I've arrested you while you were in your car, I can legally search both you and your vehicle. Even if I can't do that, because your car will be unattended courtesy of your arrest, I can have it towed; I'm then allowed to do an "inventory search" of the car.

Again, I apologize if I'm treading close to SZ. But, I do think it's important that y'all have a cursory knowledge of the extent of your "rights" - if for no other reason, it might save you charges arising from mouthing off to the cops.
 
The smart people don't mouth off to robocop. That's what court is for.

As for rights, I have the right to make the bad cop's life a living hell for being a jerk. His dept too. I've done that twice. I'm not proud of it but their behaviors begged for it.
 
I would bet there is more to this case than the rubber bands mentioned in the seven sentences that comprise this article. If you want to believe that this guy got busted because of rubber bands, and that the cops were just lucky to find that he had 26 pounds of coke in his car, that is OK. People believe what they want to believe.
 
Obi Heed Kenobi said:
Another case worth reading is Atwater v. City of Lago Vista.

Summarized: presuming I have no actual probable cause to do a search of you or your car, I can get in through the back door (please, no TSA jokes) by putting you under arrest and doing a search incident.

So, let's say it's a criminal offense to not wear a seatbelt. I pull you over, see you're not wearing a seatbelt. Because I'm a jerk, I think that all kids your age are probably running drugs. Even though for most people I wouldn't, I decide to arrest you because I can. Not wearing a SB is in no way probable cause for a search of either you or your vehicle. Yet, because I've arrested you while you were in your car, I can legally search both you and your vehicle. Even if I can't do that, because your car will be unattended courtesy of your arrest, I can have it towed; I'm then allowed to do an "inventory search" of the car.

Again, I apologize if I'm treading close to SZ. But, I do think it's important that y'all have a cursory knowledge of the extent of your "rights" - if for no other reason, it might save you charges arising from mouthing off to the cops.
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Arizona v Gant
 
Steve Foley said:
I'm nearing the end of my second year in a four year program. I should finish in December of 2012, right before my 51st birthday.
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Thumbs up. If I can ever be of any help with anything - including concepts on the bar - feel free to shoot me a PM.

What's funny is that things which seemed complicated to me in law school now seem ridiculously silly; things that seemed simple, on the other hand, now seem to be ridiculously complex.
 
alaskaflyer said:
Arizona v Gant
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Gant's actually a pretty meaningless decision. It doesn't apply in the following scenarios: 1) if you're arrested inside your car or within a short time of exiting it (Gant had been outside of the car for an extended period of time); 2) if it's reasonable to think that evidence of the crime you're arrested for can be found inside the car; or 3) inventory searches.

The former two are direct holdings of the case; the latter kind of search wasn't changed by it. It's the inventory search that makes it hollow (at least theoretically - practically, how many PD's will tow on a regular basis?).

In regard to inventory searches, it will be very interesting to see if someone challenges an inventory search on the basis that they render Gant meaningless. I'm sure it's already being done (Gant is almost 2 years old).

For instance, I arrest you on an outstanding warrant. At the time you're arrested, you've been standing outside your car for 15 minutes because I asked you to (I've got the right to tell you to get out). In this situation it's very clear that Gant prohibits me from doing a search incident of the car (I can still search you, however).

But, despite Gant, I can still have your car towed down to the impound lot, where I can do the standard inventory search on which there are virtually no limits (it depends on department policy - pretty much carte blance to the police). It's not unreasonable for me to tow your car, because a car on the side of any road is problematic in a variety of ways.

That kind of makes Gant entirely meaningless, and means that Gant simply provides a minor hurdle to jump over, while also providing a nice service to local communities in the form of an incentive to give a towing company some business.

Depending on what happens, Gant may end up being a pretty hollow decision....
 
Maxmosbey said:
I would bet there is more to this case than the rubber bands mentioned in the seven sentences that comprise this article. If you want to believe that this guy got busted because of rubber bands, and that the cops were just lucky to find that he had 26 pounds of coke in his car, that is OK. People believe what they want to believe.
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Probably had an air freshener, too. :)

In seriousness, you're likely right.
 
Pi1otguy said:
http://www.philly.com/philly/news/20101128_ap_carstopinsoutheastpanets12mofcocaine.html



Assuming you're already interacting with the police, what counts as probably cause? Rubber bands seems kind of flimsy.


And by implying that criminals use rubber bands to sort large amounts of cash, does that imply that carrying large amounts of cash is evidence of criminality? Surly some of us here have carried around a few thousand dollars on them at one time or another.
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From a practical standpoint, Probable cause counts as whatever the officer who has it, wants it to be.

This issue is one that is truly resolved at trial, and at the appellate level, not at the interaction with law enforcement.

What is reasonable and prudent to an arresting officer in the slums of the Bronx or Harlem may not be to an arresting officer in Salt Lake City... which may or may not be reasonable and prudent to an officer patrolling the interstates leading to our border with Mexico.

Anecdotally, I've heard of Texas cases from one prosecuting district attorney having the following for various cases (as submitted by law enforcement):
Driving too fast
Driving too slow
Dressed too well
Dressed too shabbily

You see what I mean?
 
Doggtyred said:
From a practical standpoint, Probable cause counts as whatever the officer who has it, wants it to be.

This issue is one that is truly resolved at trial, and at the appellate level, not at the interaction with law enforcement.

What is reasonable and prudent to an arresting officer in the slums of the Bronx or Harlem may not be to an arresting officer in Salt Lake City... which may or may not be reasonable and prudent to an officer patrolling the interstates leading to our border with Mexico.

Anecdotally, I've heard of Texas cases from one prosecuting district attorney having the following for various cases (as submitted by law enforcement):
Driving too fast
Driving too slow
Dressed too well
Dressed too shabbily

You see what I mean?
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That's about the size of it. Although we'll try act like it's some kind of set equation, probable cause is really a "seat-of-the-pants-I-can't-define-it-but-know-it-when-I-see-it" type of issue.
 
Ah, the guy just looked like a dealer.
 
Obi Heed Kenobi said:
Gant's actually a pretty meaningless decision. It doesn't apply in the following scenarios: 1) if you're arrested inside your car or within a short time of exiting it (Gant had been outside of the car for an extended period of time); 2) if it's reasonable to think that evidence of the crime you're arrested for can be found inside the car; or 3) inventory searches.

The former two are direct holdings of the case; the latter kind of search wasn't changed by it. It's the inventory search that makes it hollow (at least theoretically - practically, how many PD's will tow on a regular basis?).

In regard to inventory searches, it will be very interesting to see if someone challenges an inventory search on the basis that they render Gant meaningless. I'm sure it's already being done (Gant is almost 2 years old).

For instance, I arrest you on an outstanding warrant. At the time you're arrested, you've been standing outside your car for 15 minutes because I asked you to (I've got the right to tell you to get out). In this situation it's very clear that Gant prohibits me from doing a search incident of the car (I can still search you, however).

But, despite Gant, I can still have your car towed down to the impound lot, where I can do the standard inventory search on which there are virtually no limits (it depends on department policy - pretty much carte blance to the police). It's not unreasonable for me to tow your car, because a car on the side of any road is problematic in a variety of ways.

That kind of makes Gant entirely meaningless, and means that Gant simply provides a minor hurdle to jump over, while also providing a nice service to local communities in the form of an incentive to give a towing company some business.

Depending on what happens, Gant may end up being a pretty hollow decision....
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No David in practice we (and I truly mean the greater we) are no longer performing search incident to arrest on vehicles, departments are construing Gant very broadly. If they are pulled out of a vehicle even for a nanosecond you no longer have the authority. Belton and associated cases are considered completely out the window.

And who the heck searches a vehicle with the person still in it? That is crazy.

Yes if you have PC you can search. But that isn't " search incident to arrest " it is pursuant to PC.

Not all jurisdictions have the power to inventory.

I'm not expressing an opinion about this - I follow the courts analysis - but I WILL say that I have made countless good cases with this tool that might not have been made. Arrested for one thing (honest arrests for bad things even if only a revoked drivers license) and discovered evidence of serious felonies unrelated. Mostly drugs yes but also armed robbery and one homicide.
 
alaskaflyer said:
No David in practice we (and I truly mean the greater we) are no longer performing search incident to arrest on vehicles, departments are construing Gant very broadly. If they are pulled out of a vehicle even for a nanosecond you no longer have the authority. Belton and associated cases are considered completely out the window.
...
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I agree that this is a smart policy - there are other ways to skin the cat that don't run as high a risk of suppression.

But here's what Gant says from its final paragraph, word for word, for what it's worth:

"Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

It's rare that we get a nice statement like that of exactly what is and isn't allowed - more often, we're left to extrapolate for our individual selves. Without doubt, it's a conspiracy to keep lawyers in business. Joking aside, I wonder about that from time to time.

I'm not expressing an opinion about this - I follow the courts analysis - but I WILL say that I have made countless good cases with this tool that might not have been made. Arrested for one thing (honest arrests for bad things even if only a revoked drivers license) and discovered evidence of serious felonies unrelated. Mostly drugs yes but also armed robbery and one homicide.
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No disputing that.

But, what you're raising - this is what the 4th Amendment is all about. The question isn't whether the intrusion is effective, but rather whether it is appropriate under the circumstances.

Of course, it can be easily argued that appropriateness must be measured by effectiveness. Put different, the end either justifies or negates the means.

In other words, you can argue that if something gets results it is reasonable; if it doesn't, it is unreasonable.

Just to keep it aviation-related, it seems like this issue was/is (I write "was" because it's yesterday's news, right) a significant part of the ruckus over the new TSA policies.
 
Can you tow a car, put in in the impound lot and then get a warrant based on the fact that you arrested the driver on something ?
 
weilke said:
Can you tow a car, put in in the impound lot and then get a warrant based on the fact that you arrested the driver on something ?
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It is a common and accepted practice to inventory the contents of any car that is towed.
 
weilke said:
Can you tow a car, put in in the impound lot and then get a warrant based on the fact that you arrested the driver on something ?
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Well, you aren't likely to get a judge to approve a warrant simply based on the fact that someone was arrested for something. For example, if I arrest someone for an outstanding warrant for drug possession that occurred elsewhere, that doesn't give me probable cause to search for drugs right then. There needs to be something more than that.

Also, generally speaking, one does not need to obtain a search warrant for a vehicle. This is one of the exceptions to the search warrant requirement. Courts test for probable cause after the search, in the case of vehicles, not before such as for buildings/containers/almost everything else. Briefly, the reasoning of the court is that they are highly mobile and highly regulated and your expectation of privacy is lessened. Some individual states restrict or more narrowly tailor this power.

And as David alluded above, if I must impound a vehicle for something, in most jurisdictions, I have the power to inventory the vehicle completely before taking custody of it, so long as I am following a standard operating procedure promulgated by the agency in advance, and anything found can be used as evidence. But some states and municipalities restrict this power. This has nothing to do with probable cause.
 
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Probable cause really depends on how well the police officer can articulate his thoughts while he builds his case. To establish probable cause, all the officer has to do is convince the judge that a reasonable person would believe something. When an officer goes to get a warrant he has to explain his probable cause in writing to the judge who is going to sign the warrant. Judges are very helpful when it comes to probable cause. Sometimes it takes more than one trip to the judge's office to get the warrant. If the probable cause is not strong enough it is not unusual for the judge to tell the officer what he would like to see in the application and send him out to get it. It is also not unusual for the judge to ask questions, jot notes on the warrant application, then sign it.
 
The definition of probable cause that David gave above is pretty good. I believe that the Black's Law Dictionary definition describes it as "more likely than not." I don't like that definition because I don't believe (and I think most courts would agree) that PC must rise to the "tip the scales" level, which elsewhere is described as the "preponderance of the evidence" standard. I believe (if you must measure it this way) that it is something less than that, 33% maybe ;) But it must be specific, and it must be easily articulated.
 
Obi Heed Kenobi said:
What's funny is that things which seemed complicated to me in law school now seem ridiculously silly; things that seemed simple, on the other hand, now seem to be ridiculously complex.
Click to expand...

+1.

I never knew more law, than when I finished law school.

Now, I am perpetually confused.
 
SCCutler said:
+1.

I never knew more law, than when I finished law school.

Now, I am perpetually confused.
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Imagine how the rest of us feel when we have to deal with the system your lot created...

Some day there will be a reckoning...the money-changers got a taste of it in 09...when will it be the lawyers turn?
 
...something about glass houses comes to mind...
 
I agree, I should back off just a bit. I suppose I'm just used to folks always taking shots at my industry...and mother nature always decides anyway.

No harm intended, just some frustration vented.
 
Clark1961 said:
I agree, I should back off just a bit. I suppose I'm just used to folks always taking shots at my industry...and mother nature always decides anyway.

No harm intended, just some frustration vented.
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Buh.

We're used to it - just have to scratch the itch every now and again.
 
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