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The Relationship Between Probable Cause & Search & Seizure

The concept of probable cause is rooted in the Fourth Amendment of the U.S. Constitution. Observations, experience, and known information –can give law enforcement probable cause for arrests, searches, and seizing property.

Search and seizure without probable cause or a warrant is generally prohibited. If you are the subject of improper search and seizure in the Milwaukee area, the Law Offices of Christopher J. Cherella can help you.

Protections Provided by the Fourth Amendment

A minimum requirement for a court to issue a warrant is a showing of probable cause demonstrating a certain level of criminal activity. This limitation is recognized throughout the United States as part of the Fourth Amendment to the U.S. Constitution. This amendment was passed by Congress on Sept. 25, 1789, and ratified on Dec. 15, 1791. The first 10 constitutional amendments comprise the Bill of Rights.

The Fourth Amendment states the following:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This right limits the power of law enforcement to search people, their property, and their homes. A U.S. Supreme Court ruling led to the exclusionary rule. Evidence obtained as part of an illegal search cannot be used in court.

Probable Cause Also Impacts Arrests & Charges

When a police officer places someone under arrest, that officer must have probable cause to believe they committed a specific crime. Probable cause rises above a reasonable suspicion and must be based on facts, not solely on intuition or a hunch.

An arrest does not necessarily mean charges will be filed. Prosecutors must also review the facts. Based upon that review, the prosecutor must then determine if they can prove their case beyond a reasonable doubt in order to file criminal charges against a person.

Reasonable Suspicion vs. Probable Cause

Reasonable suspicion is a lesser standard than probable cause. While probable cause requires concrete information, reasonable suspicion can be based on the person’s behaviors. If someone is drifting in and out of their lane, an officer can have reasonable suspicion the driver might be under the influence of drugs or alcohol. The officer can stop the vehicle based on reasonable suspicion. Probable cause would still be typically required before the officer could search the vehicle.

The Milwaukee Police Department has defined the two concepts as follows:

  • Probable cause is the quantum of evidence that would lead a reasonable police officer to believe that the defendant committed a crime. It is more than a hunch or suspicion, but less than the evidence required to convict at trial.
  • Reasonable suspicion (also called articulable suspicion) is individualized, objective, and articulable facts that, within the totality of the circumstances, lead a police member to reasonably believe that criminal activity has been, is being, or is about to be committed by a specific person or people.

Circumstances When a Search Warrant Is Unnecessary

There are specific situations in which a search warrant is not required:

  • When a person gives the police permission to search
  • When the search is part of a lawful arrest
  • Emergency situations that threaten public safety or the potential loss of evidence
  • When inventory is taken after a car has been impounded
  • If contraband is in the view from where the officer has a right to be present
  • During temporary questioning without arrest if the officer believes they or others are in physical danger

Standing Up for Your Fourth Amendment Rights

We strongly believe there is no justification for violating someone’s rights. Any unlawful search or arrest must be met with an intelligent, hard-hitting defense. Attorney Cherella has challenged law enforcement and courts for more than two decades.

We will fight for your Fourth Amendment rights. Learn more in a free consultation. Contact us online or call (414) 882-8382 to schedule.