I. criminal procedure overview 3



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D. PROBABLE CAUSE




1. Overview of probable cause



Rule: A search or seizure must be supported by probable cause (“reasonableness” requirement)
What must police have probable cause to believe?

  • For arrests: PC that the defendant committed a crime

  • For searches: PC that the police will find evidence of a crime in the place being searched


Summary of key principles

  • Test for PC = totality-of-circumstances test (reliability and basis of knowledge prongs are highly relevant but not determinative) (Gates)

  • PC is a fluid and practical “common-sense” standard which is fact-specific (Gates)

  • In Gates, the majority rejected Spinelli’s two-prong test as it was too technical and limiting for law enforcement application. Rather, PC is a flexible standard and is not readily susceptible to a set of legal rules (advantages of flexible standards v strict rules)

  • Bare hunch is not enough. Sufficient information must be provided to the magistrate to allow a determination of PC  non-delegation requirement: magistrate cannot ratify the bare conclusions of others, abdication of their duty (Nathanson)

  • Predictive information of future behavior is intrinsically more reliable (as it is harder to predict) and when independently corroborated by police can constitute PC (Draper)

  • A “general” tip that X is engaging in illegal activity is less reliable (could be based on rumor) (Spinelli)

  • PC can be satisfied even where the probability is 1/3 (Pringle)

  • Prof: The majority in Gates got it wrong that a strong showing on one prong could remedy a deficiency on the other prong (without corroboration). The 2 prongs address different things, even if the informant has been reliable in the past, without the basis of knowledge, you just don’t know if the new information is based on mere rumor. (White J in his concurrence in Gates also suggests that the majority got it wrong – as this would mean that the court should accept an affidavit from a police officer who is known as reliable and honest, but the SC has repeatedly held that an unsupported assertion or belief of the officer is insufficient to satisfy PC, see for eg. Nathanson).


Summary of cases

  • Nathanson = No PC

  • Draper = PC

  • Spinelli = No PC

  • Gates = PC

  • Pringle = PC



2. Bare hunch is not enough



Nathanson (p.433) (bare hunch / mere affirmation of suspicion is not enough to = PC)

  • Facts: A police officer said in an affidavit supporting a search warrant that he “has cause to suspect and does believe that illegal liquor is deposited within the premises”.

  • Held: That “mere affirmance of a belief or suspicion is not enough” to constitute PC → it is just a conclusory statement → therefore no PC and search was unlawful.

  • Note: This is an example of the “non-delegation” requirement → sufficient information must be presented to the magistrate to allow the determination of probable cause → the magistrate’s action cannot be a mere ratification of the bare conclusions of others (otherwise it is an abdication of their duty).



3. Use of informants



Draper (1958) (p.433) (predictive tip + corroboration = PC)

  • Facts: Informant told police that D would be wearing a light colored raincoat, brown slacks and shoes and carrying a “tan zipper bag” and “walking real fast”. No information as to the basis of the informant’s knowledge. Police officer waited at the train station for D, spotted someone matching his description (i.e. independent corroboration) and arrested him for possession of drugs and then searched and found the heroin.

  • Held: Officer had PC for the arrest because the officer was able to corroborate most of the informant’s tip (clothing, walking fast etc.) and therefore the officer had reasonable grounds to believe that the remaining bit of unverified information (i.e. that D was carrying heroin) was true as well. Accordingly, the search was valid as it was incidental to the arrest.

  • Prof: There is a tension between Draper and Spinelli → arguably Draper would have failed the basis of knowledge prong in Spinelli because we don’t know how the informant came to know about D’s activities → but what is distinctive about Draper is that the tip was predictive of future behavior which has intrinsic greater reliability (as it is harder to accurately predict future behavior), whereas the tip in Spinelli was of a general nature (“accepting wagers”) and not very difficult to predict.


Spinelli (1969) (p.434) (“general” tip + corroboration not enough for PC)

  • Facts: FBI obtained a warrant supported by an affidavit which contained:

    • Information from an informant that S “is accepting wagers on telephone numbers”

    • Statement that S “is known” to the FBI as a bookmaker; and

    • Description of surveillance of S’s movements (entering an apartment, crossing bridges etc.), none of which were particularly suspicious.

  • Held: Informant’s tip, even when corroborated with surveillance, was not enough for PC (as no indication of informant’s reliability or basis of knowledge and S’s movements were non-suspicious).

  • Test: 2 prong test for informants:

    • 1. Basis of knowledge prong (how does the informant know the information?)

    • 2. Reliability or “veracity” prong (how do we know that the informant is telling the truth? Has he been very reliable in the past etc.?)


Gates (1983) (p.435) (totality of circumstances test – reliability and basis of knowledge prongs are relevant but not determinative: anonymous tip (predictive of future behavior) + corroboration = PC)

  • Facts: Anonymous letter sent to police tipping them off about drug dealing by husband and wife, including details of the operation (she drives to Florida, he flies down and drives the car back, there will be drugs in the car etc.). Police conduct a surveillance operation and monitor as they travel to and from Florida largely in accordance with details in the anonymous letter. Judge issues warrant. Car was searched when it returned to Chicago and police found drugs.

  • Majority:

    • The Spinelli two prong test should be abandoned in favor of a common-sense “totality of the circumstances” test.

    • Reliability and basis of knowledge should not be understood as independent technical requirements, but rather as relevant considerations in the totality of the circumstances assessment of whether there is sufficient PC.

    • The anonymous letter by itself was not sufficient to constitute PC (as there is no indication of the reliability / basis of knowledge) – something more is needed, and in this case the police corroboration of the letter’s predictions (about the car, flying down, returning back etc.) all indicated that the informant’s other assertions (i.e. about the presence of the drugs) were true.

    • Strong probability that the informant got the information directly from husband and wife or someone closely associated with the operation.

    • Accordingly, there was a sufficient basis for PC.

  • Concurrence (White): Agreed with the majority result but reasoned based upon the Spinelli two-prongs – in this instance both prongs were still satisfied because Spinelli allowed a deficiency in either prong to be remedied by way of independent police corroboration – “if a tip fails under either or both of the two prongs, probable cause may still be established by independent police work that corroborates the tip to such an extent that it supports the inference that the informer was generally trustworthy and that he made his charge on the basis of information obtained in a reliable way” (see p.441)


Messerschmidt (2012) (Supp #2 p.1)

  • Facts: Girlfriend told police that D is a gang member and shot at her with a shotgun. Police then apply for a warrant to search residence for all firearms and gang-related materials. D argued that warrant was overbroad as no reason to search for all guns (when only had info about the shotgun) and no connection with gang activity. Technically a qualified immunity case but PC still is in issue.

  • Majority:

    • Officers entitled to qualified immunity because even if warrant was invalid, it was not so obviously lacking in PC that the officers could be considered “plainly incompetent” (importantly, the majority did not decide if there actually was PC on the facts).

    • Not unreasonable for officer to believe that there might have been more guns in the house given B’s background. Also not unreasonable for cop to include gang paraphernalia as could have provided a motive for the attack on the GF (as she may have threatened to disclose secret activity).

  • Dissent (Sotomayor and Ginsburg): Fishing expeditions are banned under the 4th Amend. It is not objectively reasonable for police investigating a specific, non-gang assault committed with a particular firearm to search for gang-paraphernalia and all other firearms.


4. How high does the probability need to be?



Pringle (2003) (p.494) (suggests that 1/3 probability = PC)

  • Facts: Police stop a speeding vehicle with 3 occupants including D who is the front-seat passenger. Driver consents to search of vehicle (so no issue around whether there is PC for the search) that yielded cocaine in back armrest. Police question all 3 occupants but no one talks so all 3 are arrested. D confessed and later tried to exclude based on a lack of PC for the arrest.

  • Held:

    • Police had PC to arrest all 3 occupants as it is “entirely reasonable to infer that any or all 3 of the occupants had knowledge of, and exercised dominion and control over, the cocaine”.

    • Distinguished this case from Ybarra v Illinois (search of patrons in bar, need for individualized suspicion) as D was in a small vehicle and unlike an unwitting patron in a bar, “a car passenger will often be engaged in a common enterprise with the driver”.

  • Prof: How high a probability do you need to constitute “probable cause”? This case suggests that a 1/3 chance (33%) will suffice → courts have deliberately avoided saying that you need 51% or more to satisfy the threshold.



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