7.4: Developing Probable Cause

Basic Principles

Having given up on a mathematical solution to the problem, we must rely on certain basic principles. And the most basic principle is this: Neither probable cause nor reasonable suspicion can exist unless officers can cite “specific and articulable facts” that support their judgment. This demand for specificity is so important that the Supreme Court called it the “central teaching of this Court’s Fourth Amendment jurisprudence.” The question, then, is this: How can officers determine whether their “specific and articulable” facts are sufficient to establish probable cause or reasonable suspicion? That is the question we will address in the remainder of this article.

The Totality of the Circumstances

Almost as central as the need for facts is the requirement that, in determining whether officers have probable cause and reasonable suspicion, the courts will consider the totality of circumstances. This is significant because it is exactly the opposite of how some courts did things many years ago. That is, they would utilize a “divide-and-conquer” approach which meant subjecting each fact to a meticulous evaluation, then frequently ruling that the officers lacked probable cause or reasonable suspicion be- cause none of the individual facts were compelling. This practice officially ended in 1983 when, in the landmark decision in Illinois v. Gates, the Supreme Court announced that probable cause and reasonable suspicion must be based on an assessment of the convincing force of the officers’ information as a whole. “We must be mindful,” said the Fifth Circuit, “that probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the laminated total. Thus, in People v. McFadin the court responded to the defendant’s “divide-and-conquer” strategy by utilizing the following analogy:

The defendant would apply the axiom that a chain is no stronger than its weakest link. Here, however, there are strands that have been spun into a rope. Although each alone may have insufficient strength, and some strands may be slightly frayed, the test is whether when spun together they will serve to carry the load of upholding [the probable cause determination].

Here is an example of how the “totality of the circumstances” test works and why it is so important. In Maryland v. Pringle, an officer made a traffic stop on a car occupied by three men and, in the course of the stop, saw some things that caused him to suspect that the men were drug dealers. One of those things was a wad of cash ($763) that the officer had seen in the glove box. He then conducted a search of the vehicle and found cocaine. But a Maryland appellate court ruled the search was unlawful because the presence of money is “innocuous.” The Supreme Court reversed, saying the Maryland court’s “consideration of the money in isolation, rather than as a factor in the totality of the circumstances, is mistaken.”

Common Sense

Not only did the Court in Gates rule that probable cause must be based on a consideration of the totality of circumstances, but it also ruled that the significance of the circumstances must be evaluated by applying common sense, not hypertechnical analysis. In other words, the circumstances must be “viewed from the standpoint of an objectively reasonable police officer.” As the Court explained:

Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a practical, nontechnical conception. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

Legal, but Suspicious, Activities

It follows from the principles discussed so far that it is significant that officers saw the suspect do something that, while not illegal, was suspicious considering other circumstances. As the Supreme Court explained, the distinction between criminal and non-criminal conduct “cannot rigidly control” because probable cause and reasonable suspicion “are fluid concepts that take their substantive content from the particular contexts in which they are being assessed.” For example, in Massachusetts v. Upton, the state court ruled that probable cause could not have existed because the evidence “related to innocent, non-suspicious conduct or related to an event that took place in public.” Acknowledging that no single piece of evidence was conclusive, the Supreme Court reversed, saying the “pieces fit neatly together.” Similarly, the Court of Appeal noted that seeing a man running down a street “is indistinguishable from the action of a citizen engaged in a program of physical fitness.” But it becomes “highly suspicious” when it is “viewed in the context of immediately preceding gunshots.”

Another example of how noncriminal activities can become highly suspicious is found in Illinois v. Gates. It started with an anonymous letter to a police department saying that a local resident, Lance Gates, was a drug trafficker; and it explained in some detail the procedure that Gates and his wife, Sue, would follow in obtaining drugs in Florida. DEA agents followed both of them (Gates flew, Sue drove) and both generally followed the procedure described by the letter writer. This information led to a search warrant and Gates’ arrest. On appeal, he argued that the warrant was not supported by probable cause because the agents did not see him or his wife do anything illegal. It didn’t matter, said the Supreme Court because the “seemingly innocent activity became suspiciously in light of the initial tip.”

Multiple Incriminating Circumstances

Here is a principle that, while critically important, is often overlooked or under-appreciated: The chances of having probable cause or reasonable suspicion increase exponentially with each additional piece of independent incriminating evidence that comes to light. This is because of the unlikelihood that each “coincidence of information” could exist in the absence of a fair or moderate possibility of guilt.

For example, in a Kings County murder case probable cause to arrest the defendant was based on the following: When the crime occurred, a car similar to the defendant’s “uniquely painted” vehicle had been seen in a rural area, two-tenths of a mile from where a 15-year old girl had been abducted. In addition, an officer saw “boot prints and tire prints” nearby, and “he compared them visually with boots seen in, and the treads of the tires of the defendant’s car, which he knew was parked in front of defendant’s hotel and registered to defendant. He saw the condition of the victim’s body; he knew that defendant had a prior record of conviction for forcible rape. He also knew of the victim’s occasional employment as a babysitter at the farm where the defendant worked.” In ruling that these pieces of independent incriminating evidence constituted probable cause, the California Supreme Court said:

The probability of the independent concurrence of these factors in the absence of the guilt of the defendant was slim enough to render suspicion of the defendant reasonable and probable.

Similarly, in a case from Santa Clara County, a man named Anthony Spears, who worked at a Chili’s in Cupertino, arrived at the restaurant one morning and “discovered” that the manager had been shot and killed before the restaurant had opened for the day. During their investigation, sheriff’s deputies learned that Spears had left home shortly before the murder even though it was his day off, there were no signs of forced entry, and that Marlboro cigarette butts (the same brand that Spears smoked) had been found in an alcove near the manager’s office. Moreover, Spears had given conflicting statements about his whereabouts when the murder occurred; and, after “discovering” the manager’s body, he told other employees that the manager had been “shot” but the cause of death was not apparent from the condition of the body.

Based on this evidence, detectives obtained a warrant to search Spears’ apartment and the search netted, among other things, “large amounts of blood-stained cash.” On appeal, Spears argued that the detectives lacked probable cause for the warrant but the court disagreed, saying, “[W]e believe that all of the factors, considered in their totality, supplied a degree of suspicion sufficient to support the magistrate's finding of probable cause.”

While this principle also applies to reasonable suspicion to detain, a lesser amount of independent incriminating evidence will be required. The following are examples from various cases:

• The suspect’s physical description and his clothing were similar to that of the perpetrator.
• In addition to a description similarity, the suspect was in a car similar in appearance to that of the perpetrator.
• The suspect resembled the perpetrator and he was in the company of a person who was positively identified as one of two men who had just committed the crime.
• The suspect resembled the perpetrator plus he was detained shortly after the crime occurred at the location where the perpetrator was last seen or on a logical escape route.
• In addition to resembling the perpetrator, the suspect did something that tended to demonstrate consciousness of guilt; e.g., he lied to officers or made inconsistent statements, he made a furtive gesture, he reacted unusually to the officer’s presence, he is attempting to elude officers.
• The suspect resembled the perpetrator and possessed the fruits of the crime.
• The number of suspects in the vehicle corresponded with the number of people who had just committed the crime, plus they were similar in age, sex, and nationality.

The odds of having reasonable suspicion or probable cause also increase dramatically if the matching or similar characteristics were unusual or distinctive. As the Court of Appeal observed, “Uniqueness of the points of comparison must also be considered in testing whether the description would be inapplicable to a great many others.”

For example, the courts have taken note of the following unique circumstances:

• The suspect and perpetrator both had bandages on their left hands;
• The suspect and perpetrator were in vehicles of the same make and model with tinted windows and a dark-colored top with light-colored sides. Conversely, the Second Circuit noted that “when the points of similarity are less unique or distinctive, more similarities are required before the probability of identity between the two becomes convincing.”