Talk:Probable cause

Untitled

I've found a lot of the article to be fuzzy and unclear. What's more annoying is that a lot of it is advocacy of certain theses regarding law enforcement in the US. David.Monniaux 10:44, 17 Mar 2005 (UTC)

I fixed the problems, in my opinion. – Quadell ^{(talk) (sleuth)} 21:12, Apr 15, 2005 (UTC)

Reasonable vs Probable cause

How come reasonable cause redirects to this article? From all my read of debate surrounding Title II of the PATRIOT Act, there is a significant difference. - Ta bu shi da yu 14:51, 16 January 2006 (UTC)

Because it's not neccesarily based on the Patriot Act but more on the more commonly / international Westminster system is my guess? Further to that, it's interesting that the article doesn't touch on the fact that in many countries it's a case of Police over-using alleged 'probable cause' under the grounds that they've picked someone up, have nothing to charge them with and then want to search their home, something we in Australia call 'fishing'.  :) 211.30.80.121 23:21, 3 March 2006 (UTC)

Critique

I question the rationale of including a critique in this article. The article does not discuss the legal or philosophical justification for probable cause, but rather the definition and the historical context. Since the article is not furthering an argument, it makes little sense to include a counterargument in the body of the article. Perhaps a separate article - "Justification of Probable Cause Doctrine" or the like - would be a better place to hold this critique. But the critique does not maintain the NPOV; instead, it misinforms the reader as to the legality of Probable Cause and presents the primary argument in a debate that was never started.

Furthermore, if this was cut-and-pasted from an FAQ, it would perhaps be better to include it in quotations. And if this FAQ is the only source of "controvery" that can be found over the doctrine of Probable Cause, then perhaps this falls to the axe of Undue Weight. UMassCowboy 16:09, 15 December 2006 (UTC)

None of these points make any sense and sound like someone just made them up. I copied it here in case anyone can find a reason it should be included. --L. Pistachio 05:05, 27 August 2006 (UTC)

The first definition above "a reasonable belief that a crime has been committed", has been criticised for several reasons, highlighted here. The alternative definition "reason to believe that an injury had criminal cause" corrects these deficiencies.

Circular reasoning: Which came first, law or crime? If crime is "things which the law prohibits", and law defines "that which is crime", we have self-reference. And since the phrase probable cause first occurs in the United States Bill of Rights, which was defining the law, it has been suggested that probable cause must be defined, not in terms of law, but in terms of connection between the accused and an injured victim.

Semantic Error: The most common usage of "probable cause" is usually something like "the officer had probable cause to believe that a crime occurred". However, this definition also includes belief. A simple substitution of the definition into the most common usage results in the bizarre "the officer had a reasonable belief that a crime has been committed to believe that a crime occurred". Either our definition or this usage is incorrect.

Individual Discretion: The system of government defined by the US Constitution, with separation of powers, checks and balances, and juries, suggests that the decision to arrest should not be made on-the-spot by an individual, such as a police officer. The language of the Constitution suggests that arrests, searches and seizures should be a deliberative process, starting with the "oath or affirmation" of a civilian complaint, and that indictments should be made by (Grand) juries.

Failure to make connection to victim's injury: The purpose of the Fourth Amendment is to protect the rights of citizens against the abuses of government. The Declaration of Independence states that the Colonists were being "transported beyond the seas to be tried for pretended offenses".

This critique comes from the Lawful Arrest FAQ. What about it does not make sense? The phrase "probable cause" comes from the US Constitution, and it is intended to assert and protect the rights of citizens from government tyrrany. However, the common definition of probable cause does not make any sense, and the intended protections are being eroded. This section addresses the problems with the current "accepted" definition. I'm adding it back. Please discuss your problems with this section before deleting again. -- Bhuston 17:38, 20 September 2006 (UTC)

I cleaned up the replaced section. Is it more clear now? -- Bhuston 18:17, 20 September 2006 (UTC)

I have removed the NPOV tag, since there is no NPOV requirement in a Critique section. Indeed, its inclusion is required to establish a NPOV. --Bhuston 10:53, 29 November 2006 (UTC)

Minor clarifications on Critique

I have made a few edits that hopefully improve clarity.

Also, regarding the following language:

The language of the Constitution suggests that arrests, searches and seizures should be a deliberative process, starting with the "oath or affirmation" of a civilian complaint, and that all indictments of wrongdoing should be made by a Grand jury (a body of the people) and not with a government agent (the police officer).

I'm not sure what the author intended by this. First, the Fourth Amendment deals with searches and seizures, but not arrests (at least not explicitly). I believe the courts have extended its application to some arrests.

Second, all "indictments of wrongdoing," under the U.S. legal system are indeed brought by a grand jury, not by a police officer. (There is a process where the prosecution can bring something called a criminal information that might be used instead of an indictment, but I'm thinking a criminal information is generally brought by a district attorney or deputy district attorney, not by a police officer -- but I'm a bit rusty on that point.) Search, seizure, arrest, and indictment are all separate legal concepts.

Third, regarding arrests, searches, and seizures: yes, a police officer can in certain cases arrest an individual without a warrant and, in certain cases, can also search and seize without a warrant and without an oath or affirmation or a "civilian complaint" (whatever the author meant by that -- maybe "search warrant"??). That was also the case at the time the U.S. Constitution was ratified. It's unclear (at least to me) what the critique actually is intended to say.

The "right of the people to be secure in their persons, houses, papers, and effects" has always varied depending on the facts and circumstances. For example, the right to be secure in your person and your papers and effects can vary depending on whether you (and your papers and effects) are at home or, alternatively, are trying to get on an airplane. The right to be secure in your house, papers and effects does not apply with the same force when you are in your car driving down the road as it does at home. Yes, you still have some legal rights under the Fourth Amendment in your car -- but you are not as protected as when you are at home. In short, the critique as currently written just seems to me to be a bit vague and maybe too general. Anyway, I hope my clarifying edits are actually clarifying, and are not changing the intended meaning of the critique. Yours, Famspear 18:28, 13 October 2006 (UTC)

Critique: Not NPOV

The problem I have with the critique section is that it is stated as fact rather than a debatable opinion. It definately reads like someone's opinion, particularly the last statement about so-called "abuses" (including "victemless crimes", which the author is clearly against). Something should be done that either establishes a neutral point-of-view for these criticisms, or explicitly states where the encyclopedia ends and the opinion begins. For now, I'm just marking the section NPOV. Korval 00:38, 11 November 2006 (UTC)

I have removed the NPOV tag, as there is no requirement for NPOV of a Critique section. Indeed, its inclusion is required to establish a NPOV --Bhuston 10:54, 29 November 2006 (UTC)

probable cause

can police officer make me leave my house and tell me to stay out of it until they get the search warrant? i asked them if they have a search warrant and they told me to leave the site and not interfear with their investigation or i will go to jail. i left and 4 hours later they received the search warrant and seized my things. after their done searching they told me i can comeback inside. —Preceding unsigned comment added by Knpinoy (talk • contribs) 12:38, 5 March 2008 (UTC)

History of the term "probable cause"

The history of this term is interesting. It goes back to at least 1676 (http://www.etymonline.com/index.php?l=p&p=31). I have recently done a lot of reading about it (nothing formal - I didn't keep references). Also, does anyone know the correct word for the "etymology" of phrases? Is that still etymology or classified as something different?

I just removed a paragraph that contained speculation. I need to check my references first.

I think that we should include an etymology? section. However, I don't have the references for this. I'm trying to get good sources, historical source. Legal dictionaries in the late 1600s, for instance. Is there anybody interested in writing an this section? If not, I'll do it. Socratesone (talk) 07:48, 26 April 2009 (UTC)

Still don't have the references organized, but I've managed to do some research. The term "probable cause" originates in England in the late 1600s, and is used to describe the "probable cause" OF a crime. To use it in a sentence, "John Smith was the probable cause of the dead body". At that time, it did not refer to a standard, but implied one. As time went on, the definition of term evolved into the standard for identifying the probable cause of a crime - a certain amount of evidence, which is what is meant in the Constitution. However, this was always used to describe a crime that had already been committed, and not a potential crime or a possible crime. As time went by, certain supreme court decisions morphed the term into what it means now, which is the standard for which search can be conducted or an arrest can be made. This has been criticized by constitutionalists, however, as circular reasoning. (The constitution uses the term "probable cause" AS the standard for a search, but now the term means the standard itself, which means the standard can change at any point by changing the definition - in other words, it's a slick way of removing 4th Amendment rights without the mess of a constitutional convention).Socratesone (talk) 19:29, 12 October 2010 (UTC)

Section "Probable cause hearings" is inaccurate

I haven't yet dug up secondary sources, but the following

The judge is presented with the basis of the prosecution's case, and the defendant is afforded full right of cross-examination and the right to be represented by legal counsel. If the prosecution cannot make a case of probable cause, the court must dismiss the case against the accused.

is factually untrue, at least in Florida. There the Fourth Amendment requirement is usually satisfied(sic?) with a "non adversarial" hearing in which the defendant has no right of cross-examination. And the remedy seems to generally be an OR release rather than dismissal. (http://www.joffelaw.com/state-rules/3-132.html and ajacent pages; http://www.davidsilverman.com/First%20Appearance%20Presentation%20--%20Materials.doc ; etc.) Also pc for what (arrest, or the charge) seems to be an issue. I was brought to this question (and this article) by an examination (in progress) of the way the entirely inadequate Affadavit of Probable Cause in the George Zimmerman (Trayvon Martin) case has functioned, but my only solid conclusion is that this article is in error. Andyvphil (talk) 10:37, 10 May 2012 (UTC)

Agreement with Illinois v. Gates article

In this article, at Probable cause#Related cases it says,

The Supreme Court decision Illinois v. Gates 462 U.S. 213 (1983) lowered the threshold of probable cause by ruling that a "substantial chance" or "fair probability" of criminal activity could establish probable cause. A better-than-even chance is not required.

The article Illinois v. Gates doesn't say anything about a better-than-even chance being required or not. These two articles should be brought into agreement with both the decision and each other. —Anomalocaris (talk) 23:41, 29 March 2011 (UTC)

Timing of probable cause

I have a question about the timing of probable cause. I think it is easiest to see my question in the following contrived example. Suppose corrupt police officers, without evidence, draw up a list of 100 serious crimes and ask 100 grand juries to consider 100 distinct charges against a person. Suppose during this "witch hunt" that one of the grand jury investigations happens to turn up actual probable cause that a crime may have been committed and delivers an indictment. Is this a correct decision of the grand jury, or is it the grand jury's duty to verify that the police officers already had probable cause, prior to bringing it to the grand jury?

If someone knows the answer to this, perhaps even how it has evolved over time and how it varies by place, would you edit the article accordingly? Thank you —Quantling (talk | contribs) 21:17, 1 December 2013 (UTC)

The text from Beck v. Ohio establishes the timing. I have modified the article to include more of that original text.—Quantling (talk | contribs) 15:55, 27 May 2022 (UTC)

Accident Investigation

I'm a student learning how to edit Wikipedia, and I noticed that the section about accident investigation is difficult to understand, and very short. I also noticed it is missing a reference. Oksoha (talk) 03:55, 24 September 2014 (UTC)

Citations

I am also a student learning about Wikipedia and how to edit it and found that some of the sections didn't have any references, such as the definition of probable cause at the beginning of the article, accident investigation, and other countries. The information presented is interesting and valuable, being able to find out where it came as an academic sources would help it be even more credible and useful. I did notice in the talk page that some were still looking into their source. If it already has been cited and reference and I just didn't see it, I apologize in advance. Odinlosemei (talk) 00:54, 25 September 2014 (UTC)

Definition For Probable Cause

Could another editor look at this suggestion to put on this page under definitions section on the page I felt like it was important to look at the side of a supreme court ruling. Would this be a good thing to add?

In the supreme court case Brinegar V. United States, the Supreme Court defines probable cause as “where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”Oksoha (talk) 07:21, 25 September 2014 (UTC)

Bibliography

Bowers, Josh. "Probable Cause, Constitutional Reasonableness and The Unrecognized Point of a "Pointless Indignity"" Standford Law Review 66.5 (2014): 987-1050. ABI/INFORM. Web. 2 Oct. 2014. <http://search.proquest.com/docview/1535656256>.

TASLITZ, A. E. (2013). CYBERSURVEILLANCE WITHOUT RESTRAINT? THE MEANING AND SOCIAL VALUE OF THE PROBABLE CAUSE AND REASONABLE SUSPICION STANDARDS IN GOVERNMENTAL ACCESS TO THIRD-PARTY ELECTRONIC RECORDS. Journal Of Criminal Law & Criminology, 103(3), 839-905.

Lerner, Craig S. "The Reasonableness of Probable Cause." Texas Law Review 81.4 (2003): 951. Ebsco Host. Web. 2 Oct. 2014. <http://web.a.ebscohost.com/ehost/detail/detail?vid=12&sid=332266e1-133f-44b2-9ba1-c6847cb67247%40sessionmgr4002&hid=4101&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=aph&AN=9240320>.Odinlosemei (talk) 16:28, 3 October 2014 (UTC)

Fisher, James, et al. "Assessing the Impact of the USA PATRIOT Act on the Financial Services Industry." Journal of Money Laundering Control 8.3 (2005): 243-51. ProQuest. Web. 9 Oct. 2014. http://search.proquest.com.hal.weber.edu:2200/criminaljusticeperiodicals/docview/235959324/30D1369A6D574CDBPQ/2?accountid=14940

Wallentine, Ken. "K-9s: Making Scents." Police 23.1 (1999): 34-5. ProQuest. Web. 9 Oct. 2014. http://search.proquest.com.hal.weber.edu:2200/criminaljusticeperiodicals/docview/198677723/1AEF492170FF4EFBPQ/1?accountid=14940

Reynolds, Tyler. "The Fourth Amendment: The Appropriate use of Drug Dogs to Search Vehicles on School Grounds." Journal of Law and Education 36.4 (2007): 589-94. ProQuest. Web. 9 Oct. 2014. http://search.proquest.com.hal.weber.edu:2200/criminaljusticeperiodicals/docview/200948967/1AEF492170FF4EFBPQ/3?accountid=14940 Oksoha (talk) 02:17, 10 October 2014 (UTC)

Wallentine, Ken. "The Dog Day Traffic Stop - Basic Canine Search and Seizure." (2008). Web. 21 Oct. 2014. http://policek9.com/html/drugdog.html. Oksoha (talk) 04:41, 24 October 2014 (UTC)

Revisions

Here is a outline of edits to probable cause that we are thinking about making both in adding and reorganizing this article. Any thoughts, information, and suggestions are welcomed.

Outline

Probable Cause

• Broader Definition (Applicable to various country’s or a definition from a World Council)
• Picture of someone searching a car or house, a constitution.

Table of Contents

Definitions by countries

• Unites States
  • History and Development
    • English Law, Constitution, Terry v. Ohio (Others contributors)
• Sweden
• Other Countries (We could not find much reliable information for other specific countries but if someone else knows, they could add it here)

Applications of Probable Cause Searches/ Special Circumstances/ Exceptions (In the United States)

• Probationers and Parolees
• Incident Investigations (Add Info and Ref)
• Other Countries – US Application (maybe include this in Definition by countries?)
• Cybersurveillance
  • Patriot Act
• K9 Units

Related Cases

References

Bibliography

External Links Odinlosemei (talk) 18:06, 10 October 2014 (UTC)

Peer Review

Your article is looking very good so far! There are just a few small things that we noticed. Your addition of the trained drug dogs section is a good one, but there are a few sentences that don't make sense. Namely, "When the dog alerts their officers, this gives the probable cause for the luggage to obtain a warrant." The wording of this sentence makes it seem like the luggage obtained the warrant. Some rewording would be very helpful. Saying "a lot of drugs" in the next sentence sounds a bit informal, you could maybe say "a large quantity of drugs" instead.

" If the incident where the dog alerts its officer and is dealing with one of the exceptions to a warrant, such as plain view, incident to arrest, automobile, exigency, or with a stop and frisk, the probable cause from the dog is enough to conduct a search." This sentence sounds a bit strange if you read it out loud. Maybe omit the "and" between officer and is.

Section titles are typically only supposed to have the first word capitalized, unless there are proper nouns. I went ahead and fixed this for the drug dog section. Saying "for probable cause" was redundant, since that is what the entire page is about. I removed that for you, as well.

Reference number 16 is a broken link.

Your outline posted above looks good. We are also having trouble with finding law and information from other countries for our topic, so you are not alone there! I am interested to see what you add about cyber-surveillance. Slarrab (talk) 18:10, 31 October 2014 (UTC)

I agree. The proposed outline would help organize the article and the addition of the drug dog section adds more depth to the topic. Adding information on Cybersurveillance might be the next section to focus on. In the outline, I'm not sure about the title "Applications of Probable Cause Searches/ Special Circumstances/ Exceptions (In the United States)." This is quite wordy, so try to come up with something simpler. Profmwilliams (talk) 19:45, 6 November 2014 (UTC)

Peer review response

We got rid of the broken reference link, so now what is number 16 actually works. Thanks for the review, we are working on the rest. Oksoha (talk) 19:17, 7 November 2014 (UTC) We reviewed the "Use of Trained Drug Dogs" section, and clarified/reworded the mentioned sentences, along with a few others. Currently working on cyber surveillance.Oksoha (talk) 03:28, 14 November 2014 (UTC)

Worldwide view? Article has US focus in Introduction

How can this topic possibly have a "worldwide view" when it is on a subject pertaining to American law? 192.234.160.245 (talk) 21:34, 3 June 2015 (UTC)

• Exactly what I was about to say. the introduction needs to be rewritten to remove the focus on the United States. 198.58.148.127 (talk) 06:16, 27 January 2016 (UTC)

No, it doesn't need to be edited for this, because the "Probable Cause" doctrine is unique to U.S. law- it doesn't exist as such in other countries, though other countries may have similar concepts which are not identical as to the nature of the requirement. 108.201.29.108 (talk) 22:01, 2 November 2017 (UTC)

Incorrect Lead

The lead states "Probable cause, in conjunction with a preponderance of the evidence, also refers to the standard by which a grand jury believes that a crime has been committed. The term comes from the Fourth Amendment of the United States Constitution:" This is incorrect for several reasons. First, "Preponderence of the evidence" is civil law, not criminal law. Secondly, Proponderence of the evidence" would be nothing more than the "reasonable suspicion" standard, which is contrasted in much of the applicable case law. (see, i.e. Terry V. Ohio, etc.) Therefore, the paragraph has been edited to remove the misconception. Please post a reply on this user's talk page before any reversion. 108.201.29.108 (talk) 22:01, 2 November 2017 (UTC)

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