What Is “Probable Cause?” Criminal Defense Attorney Perspective

What Is “Probable Cause?” Criminal Defense Attorney Perspective

When someone is arrested, charged with a crime, or even stopped on the side of the road at a traffic stop, “probable cause” is an important factor. Probable cause refers to the need for law enforcement authorities to have a reason to take action against an individual, whether that’s making a traffic stop, conducting a search, obtaining a warrant from the court, seizing property, or making an arrest.

The requirement for probable cause stems from the Fourth Amendment to the U.S. Constitution, which says that the government — which includes police officers, who act as agents of the government — can’t storm into your house or stop you on the street and search you or seize your property without a reason. The exact wording states:

“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.”

When it comes to the probable cause, the law imposes a “reasonable person” standard, which means that a reasonable person looking at the facts of the arrest, seizure, or other police action would believe the suspect had committed some type of crime to justify the police action. It’s important to note that probable cause itself is not defined in the Constitution. Rather, the U.S. Supreme Court has defined and clarified it through case law.

Probable Cause for Warrants

One way police officers and investigators get access to an individual’s home or property is by a search warrant. To obtain a search warrant, however, the authorities must petition the court to issue one. In doing so, the police must be able to show probable cause to justify the issuance of the warrant.

Probable Cause for a Search and Seizure of Evidence

In some cases, police have the authority to conduct a search without a warrant, however, certain factors must be present to justify bypassing a warrant. For example, if an individual suspected of a crime flees the police on foot or in a car, the police can pursue the person, and then stop and search them. This exception, which is known as “hot pursuit,” is just one example of a situation in which a police officer doesn’t have to first obtain a warrant to conduct a search or seizure.

The doctrine of hot pursuit exists because it’s obvious that an officer would lose track of the suspect if the officer was forced to stop and petition a court for a warrant. However, the office must still have probable cause to justify the hot pursuit and any subsequent searches and seizures.

Just as with a warrant, however, a police officer must be able to clearly state which facts and circumstances caused him or her to decide enough probable cause existed to justify the search of an individual or seizure of a person or their property.

Probable Cause for an Arrest

To make an arrest, a police officer must have probable cause to believe that a person has committed a crime, is in the process of committing a crime, or maybe about to commit a crime. In each instance, however, the police officer must have probable cause to back up his or her belief that an arrest is justified. The U.S. Supreme Court has ruled that police officer can’t arrest someone simply because they have a hunch or gut feeling that the person has committed or is about to commit a crime.

What Is Reasonable Suspicion?

Sometimes people confuse probable cause with another legal standard known as “reasonable suspicion.” Although the two standards are similar, they are applied in different circumstances. The U.S. Supreme Court established reasonable suspicion in Terry v. Ohio (1968), in which it held that police officer have the authority to briefly detain someone if they have a reasonable suspicion that the person is engaged in committing a crime.

In the Terry case, an experienced detective observed two individuals walking back and forth repeatedly along the same route, during which they paused to look into a store window. Based on the detective’s experience, he suspected them of “casing” the store in preparation to rob it. The detective approached the men, patted them down, and searched their outer clothing. During the pat-down search, the detective found pistols and arrested the men for carrying concealed weapons. When the case made it to the Supreme Court, the Court ruled that the detective was reasonable in conducting a “stop and frisk.”

These brief, fact-gathering stops are known as “Terry stops” or “Terry searches.” Unlike probable cause, which turns on a reasonable person standard, reasonable suspicion is based on what a reasonable police officer would have believed given the same facts and circumstances.

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Broden & Mickelsen, LLP
Dallas Criminal Defense Lawyers in Dallas

Broden & Mickelsen, LLP
2600 State St Dallas, Texas 75204
Main Phone: (214) 720-9552


Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case. Recoveries always depend upon the facts and circumstances of each case, the injuries suffered, damages incurred, and the responsibility of those involved.


  1. https://www.law.cornell.edu/wex/probable_cause
  2. https://www.nolo.com/legal-encyclopedia/when-police-can-make-arrest-probable-cause.html
  3. https://www.law.cornell.edu/constitution/fourth_amendment
  4. https://legal-dictionary.thefreedictionary.com/Hot+Pursuit
  5. https://www.law.cornell.edu/supremecourt/text/392/1

At Broden & Mickelsen, LLP, we are experienced Dallas criminal defense lawyers are dedicated to providing aggressive and ethical representation to individuals and businesses charged with crimes.