PP Chap 10 Probable Cause 2023

CRIMINAL PROCEDURE
2022
E-01
Professor Laura Greenberg-Chao
Lgreenberg.chao@nesl.edu
Mondays 6-7:20
Wednesdays 7:35-9:00 pm
4A and third party doctrine
• Also called “assumption of risk” doctrine
• General rule: when D shares information
with a 3d party, D assumes the risk the 3rd
party will disclose to the police
– “knowingly exposed to the public”
• Think about the content of the information
• D must know that the 3rd party is present
4A and third party doctrine
• Make sure you understand the Ct’s
reasoning:
– US v. Miller – bank records (no 4A search)
– Smith v. MD – pen register (dialed phone
numbers) (no 4A search)
– US v. Warshak – emails (yes 4A search)
– Carpenter – cell site location (yes 4A search)
Carpenter v. US
What is the 4A issue?
– Did D have an REP in his cell site location
information, or does the 3rd party doctrine
destroy his REP?
• Ct: YES REP
– Information is sufficiently private
– And, D had no choice in sharing it
– GPS provides an intimate window into a
person’s life – shows professional,
familial, political, religious, and sexual
associations
4
Overview for today
• 4A text
• When is probable cause required?
• What is probable cause?

4 Amendment Checklist
th
1. Is this D protected by the 4A?

2. Is the person who did the action governed
by the 4A? (state actor?)
3. Does the conduct fall under the 4A? (was
there a 4A search?)
4. If 4A governs, the search must be
reasonable
- warrant – supported by PC
- exception
US Constitution, 4 Amendment
th
“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 do the police need PC? When is
that standard used?
FOR SEARCHES! Is there PC to believe that
a certain item(s) are in a certain location?
If there is a 4A search => need a SW => SW

must be based on probable cause
- some of the warrant exceptions require
probable cause too (some don’t)
If there is no 4A search, warrant is NOT

necessary, and no need for PC!
Procedure for review of SWs
• Officer applies to court with warrant
application and affidavit
• Judge or magistrate does an initial review
to decide whether to issue the warrant – is
there PC? (also, reviews particularity)
– No opportunity for defense challenge
• If the warrant is issued, defense can
challenge warrant with motion to suppress
– the trial judge reviews the warrant
When do the police need PC?
When is that standard used?
FOR ARRESTS! Is there PC to believe that
this particular defendant committed a
specific crime?
Arrest, with or without an arrest warrant,

requires PC
Probable cause
FLUID
COMMONSENSE
NOT MECHANICAL
VERY VERY FACT-SPECIFIC
What is probable cause?
• Pringle definition
• FAIR PROBABILITY
• VERY FACT-SPECIFIC (In practice, look

at caselaw in your jurisdiction with similar
facts to see where your court draws the
line for PC)
Probable Cause – compared to
other standards
PROOF BEYOND A REASONABLE DOUBT >
CLEAR AND CONVINCING EVIDENCE >
PREPONDERANCE OF THE
EVIDENCE > PROBABLE CAUSE
>
REASONABLE SUSPICION
>
NO SUSPICION
(HUNCH)
Old test- Aguilar-Spinelli
2 prongs (have to satisfy both)
1. Basis of knowledge
2. Veracity/reliability
Basis of knowledge
• How does the informant (or affiant) know
what he claims to know?
– Personal knowledge
– High degree of detail + corroboration
• Draper v. US
– Corroboration of predictive (ex. Such and
such is going to happen and police can
corroborate it and it does happen)
information is particularly convincing
– No conclusory statements
Veracity/reliability of
informant
Why should the informant’s information be
trusted?
Level of scrutiny depends on who the is

providing the information
Veracity/reliability of informant
(cont) – how much scrutiny?
1. Affiant providing first-hand knowledge?
2. Affiant relying on information from fellow
police officer?
3. Affiant relying on information from
identified witness?
4. Affiant relying on anonymous tip?
5. Affiant relying on confidential informant?
Reliability of confidential
informant
• TRACK RECORD
• HIGH LEVEL OF DETAIL +

CORROBORATION
Illinois v. Gates, 462 US 213 (1983)
“If the informant had access to accurate
information of this type a magistrate could
properly conclude that it was not unlikely
that he also had access to reliable
information of the Gates’ alleged illegal
activities. Of course the Gates’ travel plans
might have been learned from a talkative
neighbor or travel agent . . . [but] it is
enough that there is a fair probability that the
writer of the anonymous letter had obtained
his entire story either from the Gates or
someone they trusted.”
Review Q 1 – Searching a crack
house
a. Anonymous tip
b. Police observation of people coming and
going during the night, for only a minute
c. Resident has prior convictions
d. Officer asks to search home; resident
says no
e. Police see lots of ziplock baggies around
house, with crack cocaine residue
BASIS OF KNOWLEDGE –
p.234 (an informant told me)
• I saw the suspect running down the street
holding something hidden under his coat
I looked behind him and saw the front
window of the electronics store had been
broken
holding something hidden under his coat I
looked behind him and I saw the front
window of the electronics store had been
Draper Case
• informant explains how acquired
information or if information has high
degree of detail that can show personal
knowledge
• Draper v. US – told cops name, where, what,
description of him/clothes, description matched one
arrested, had probable cause because so detailed
which provided inference that gained information in
reliable way
• when information only has conclusory statements or few
details without explanation where came from a court
find basis of knowledge lacking
RULES FROM DRAPER
• Conclusory states are not enough (the
informant told me he knew that D was
selling Drugs)
• High level of detail+corroboration
(especially predictive behavior) can
establish basis of knowledge
• Knowing past behavior (basis of
knowledge)
• Could the informant have heard the
information and passed it along.
TIPPED OFF BY A FAMILY
MEMBER
•Tipped off by a Family Member
•- the tip shows caller is family member and knows him well so good on veracity,
but for basis of knowledge say brother carries a gun but how do we know he was
carrying as brother doesn’t say seen him with it, isnt anonymous because willing
to identify himself under circumstances that could put him at risk of danger so
more trustworthy, no significance if gun is not found, if search is
unsuccessful/doesn’t reveal doesn’t mean wasn’t probable cause – can be wrong,
but if informant often gives wrong information will lessen credibility
MERE PRESENCE AT THE
SCENE OF A CRIME IS NOT
SUFFICIENT FOR PC
• DiRE- defendant’s presence in the car-
when he was not identified by the
informant as having anything to do with
the crime and the crime was not obvious–
was not enough for PC to arrest him
• - Note – the police recovered the
counterfeit gas rations AFTER they
arrested D. If the arrest was not
supported by PC (and here it was not) the
evidence they found him must be
• Basis of knowledge analysis
• Reliability analysis
Review Q #3
David Rodriguez
Which facts support PC?
Which facts hurt PC?
What other facts should the prosecutor

inquire about?
Would you suppress or not?

Cynthia Gomez
What is she moving to suppress?
Did the officer have PC?
What else could officer have done?

Stanley Underhill
Is there PC to arrest him?
Did his running away contribute to the PC?
What else could the police have done?

NY car presumption (can be
rebutted!)
The presence of drugs or guns in a car is
presumptive evidence of knowing
possession of the drugs/guns by everyone
who is in the car
EXCEPTIONS:
- cab driver
- if the drugs/guns are concealed
on one person
HYPO
HYPO

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CRIMINAL PROCEDURE

• When is probable cause required?

• What is probable cause?

1. Is this D protected by the 4A?

“The right of the people to be secure in their

If there is a 4A search => need a SW => SW

If there is no 4A search, warrant is NOT

Arrest, with or without an arrest warrant,

• VERY FACT-SPECIFIC (In practice, look

Level of scrutiny depends on who the is

• HIGH LEVEL OF DETAIL +

Which facts hurt PC?

What other facts should the prosecutor

Would you suppress or not?

Did the officer have PC?

What else could officer have done?

Did his running away contribute to the PC?

What else could the police have done?

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