Probable Cause vs. Reasonable Suspicion

**kimby** · 01-13-06, 01:53 AM

I'm having a lot of trouble understanding the difference. Many officers have tried to tell me, but I'm still not sure I get it. No matter how thoroughly they seem to explain it, it ends up sounding the same.

**project mindbender** · 01-13-06, 02:03 AM

The difference is courtroom preperation...ha

**BEK** · 01-13-06, 02:07 AM

Reasonable Suspicion:
The mere fact that you have arrived from a particular destination, that you are dressed in a certain way or that you are carrying particular items such as condoms, cigarette papers or little baggies, which could be associated with drug use or drug trafficking, is not in itself sufficient justification. However, a combination of these or other facts, such as suspicious behaviour, an unusual quantity of luggage, unexplained journeys abroad, etc., may give rise to enough reasonable suspicion to justify you being searched.

Observation -- These are things that the police officer obtains knowledge of via the senses: sight, smell, hearing; but this category would also include the kinds of inferences to be made when the experienced police officer is able to detect a familiar pattern (of criminal activity) that contains a series of suspicious behaviors (e.g., circling the block twice around an armored car unloading at a bank).
Expertise -- These are the kinds of things that a police officer is specially trained at; such things as gang awareness and identification, recognition of burglar tools, the ability to read graffitti and tatoos, and various other techniques in the general direction of knowing when certain gestures, movements, or preparations tend to indicate impending criminal activity.
Circumstantial Evidence -- This is evidence that points the finger away from other suspects or an alibi, and by a process of elimination, the only probable conclusion to be drawn is that the person or things left behind is involved in crime.
Information -- This is a broad category which includes informants, statements by witnesses and victims, and announcements via police bulletins, broadcasts, and at roll call.

Direct Sources of Probable Cause (Officer sources of knowledge)

FLIGHT -- Attempting to flee, evade or elude, is in evidence law a presumption of guilt. It's not by itself sufficient for probable cause, but it's surely going to result in a chase situation and custodial detention of some sort. The case of Wong Sun v. U.S. (1963) covered suspects who run out the side or back door as sufficient for probable cause, however, and there have been other cases in which suspicious behavior like dropping packages or using phones but not talking have held up.

FURTIVE MOVEMENTS -- "Furtive" means secretive or concealing, and the law requires a totality of circumstances here. The movement cannot possibly be construed as an innocent gesture (looking both ways before crossing the street). Nervousness alone is not sufficient as the law recognizes the right of people to be nervous or fearful around police. The movement cannot also be possibly the sign of a mental condition. There must be something secretive given the time, setting, weather, and audience. It would be best if the furtive movements were identifiable with a particular type of crime.

OBSERVATION OF REAL EVIDENCE -- "Real" evidence is demonstrative evidence (Exhibit A) that speaks for itself. Most of the time, these kinds of things are in plain view (binoculars and cameras are allowed as well as normal extensions of the senses, but you can't use a portable microscope to analyze the grass for fibers, e.g.). Fresh footprints is a good example, and the list includes: imprints, impressions, models, diagrams, sketches, photographs, video, and computer animation.

ADMITTED OWNERSHIP -- This involves, for example, a type of consent in which a person, say, accidentally empties the contents of their purse or pockets, and the police ask them if they own something, and they say "yes", and then the police look inside it and find contraband, they are said to have had probable cause for the search and seizure.

FALSE OR IMPROBABLE ANSWERS -- This is not normally a basis of probable cause alone, but it tends to trigger subsequent police inquiry or action. Examples might include a person being asked who the car belongs to, and they say "my cousin" but they don't know their cousin's name. Or, a girlfriend answers the door and says the apartment is rented under her boyfriend's name, but she doesn't know what kind of car her boyfriend drives.

PRESENCE AT A CRIME SCENE or IN A HIGH-CRIME AREA -- The two of these are actually somewhat different. Police have more powers at crime scenes to commandeer something, but in high-crime areas, this source of probable cause is definitely not sufficient by itself, and would probably be an example of nullification under the void-for-vagueness doctrine applicable to loitering. There are a couple of rules, however. The "joint possession" rule means that everyone in the house is subject to search and seizure if the drugs and/or contraband are in a prominent location. The totality of circumstances test applies in high-crime areas where (a) the neighborhood has to have a notorious reputation; (b) there's a typical sequence of events; (c) there's flight or attempted flight; and (d) furtive movements are present.

ASSOCIATION WITH KNOWN CRIMINALS -- This is not sufficient by itself for probable cause, except with some crimes, like conspiracies, counterfeiting, food stamp fraud, etc., where it's probable that others are involved or benefitting from the criminal activity. Association with a known drug dealer can also be incriminating in some cases. The most common case would involve somebody acting as security or a lookout for another, and this would be part of the experienced police officer standard.

PAST CRIMINAL CONDUCT -- An officer's personal knowledge of a suspect's past would be considered more likely to establish probable cause than just knowing they had a rap sheet. The officer would most likely have to know fairly intimate details of the person's life (perhaps by having previously arrested or interrogated them). In most cases, however, knowledge of this information is considered by the law to be relevant, but not sufficient.

FAILURE TO PROTEST -- This is, again, a presumption. Innocent people would react more strongly to various police actions that are incriminating. It definitely cannot be used alone as a basis of probable cause, but the interesting thing about it is that the police have it both ways. A person who is acting extremely submissive or extra "nice" might also be someone who has something to hide.

Simple terms:
Reasonable suspicion: Facts or circumstances which would lead a reasonable person to suspect that a crime has been, is being, or will be committed
Probable cause: Facts or evidence that would lead a reasonable person to believe that a crime has been, is being, or will be committed and the person arrested is responsible

http://www.flexyourrights.org/defini...probable_cause

**Terminator** · 01-13-06, 02:12 AM

BEK's post was excellent. Here's a more simple definition so that you can gain understanding of the basic knowledge of the two first:

-Reasonable suspicion is an articulable reason to suspect that a person has engaged in or is planning to engage in a criminal act; a mere hunch is not enough.

-Probable Cause is where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution or prudence in the belief that a crime has been or is being committed.

*Probable cause is the standard to make a search of a vehicle/person/residence, to make a physical arrest, to obtain arrest warrants...etc. It's a higher standard of proof than reasonable suspicion.*

Reasonable suspicion, while more than just a hunch, is merely a suspicion based on numerous factors and gives you the right to detain, and further investigate.

**project mindbender** · 01-13-06, 02:16 AM

an even simpler one: take 2-3 of bek320's items = resonable suspicion....4-5 = probable cause...not carved in stone, but a decent reference point

**BEK** · 01-13-06, 02:16 AM

I knew I should have used the underline and BOLD......brad your so smart

**Terminator** · 01-13-06, 02:32 AM

Originally Posted by BEK320

I knew I should have used the underline and BOLD......brad your so smart

I wouldn't go that far...

**jmur5074** · 01-13-06, 06:57 AM

Originally Posted by Terminator

I wouldn't go that far...

Likewise

**kimby** · 01-13-06, 08:06 AM

Thanks everyone for all this great information. I'm going to have to read everything over a few times and try to digest it, and then I may have more questions.

**chris2001** · 01-13-06, 01:10 PM

Don't worry as officers we are having to think about things just like you are. Sometimes we have to read a law two or three times to understand what the hell they are trying to tell us.

FishTail · 01-13-06, 03:25 PM

Wow...that makes my head hurt (and I have a law degree). We just have reasonable suspicion here...nice and easy.

**kimby** · 01-14-06, 01:04 PM

Originally Posted by LongTail

Wow...that makes my head hurt

That's for sure. Glad to know I'm not the only one. I sure appreciate the thorough explantion though. Thanks to Chris for admitting that you guys don't instantly understand it either (or I'd feel even more stupid than I already do).

It's gradually starting to work its way into my brain, but let me check on one thing before I try to take it to the next level. Tell me if this is true: When you have REASONABLE SUSPICION that may give you PROBABLE CAUSE. (Or is it the other way around?

) I gotta go back and read the particulars again.

I am also sensing that reasonable suspicion is more abstract and intuitive. Is this so?

Maybe it would help to hear some real-life or even made-up stories which illustrate these concepts.

**kimby** · 02-02-06, 04:42 AM

Sheesh, have I actually killed my own thread?

**BEK** · 02-02-06, 04:45 AM

COPS=short attention span

**Virginian** · 02-02-06, 10:03 AM

I found that in practice, it's relatively simple, as you do what feels reasonable. Then you can look for the correct wording to explain the legality of your actions. Like if a guy tucks something under his shirt as soon as he sees you, and keeps his hand on it and looks at you nervously, you aren't going to say "oh, I have a reasonable articulable suspicion that this guy is..." you're going to say "whoa, wtf is this guy doing?" and act appropriately, THEN figure out how to write it up

**Lazy Fed** · 02-02-06, 11:38 AM

I don't need no stinkin Probable Cause or Reasonable Suspicion....... I can search your, vehicle, luggage, or person if I want to.....

BTW the only way I can do that is because of a border search Because of the nature of our jobs and the vital importance we play in protecting the country from terrorists, and drugs Custom's Officers are exempt from probable cause or reasonable suspicion, if we want to search someone or a vehicle.

TITLE 19--CUSTOMS DUTIES

CHAPTER 4--TARIFF ACT OF 1930

SUBTITLE III--ADMINISTRATIVE PROVISIONS

Part II--Report, Entry, and Unlading of Vessels and Vehicles

Sec. 1467. Special inspection, examination, and search

Whenever a vessel from a foreign port or place or from a port or
place in any Territory or possession of the United States arrives at a
port or place in the United States or the Virgin Islands, whether
directly or via another port or place in the United States or the Virgin
Islands, the appropriate customs officer for such port or place of
arrival may, under such regulations as the Secretary of the Treasury may
prescribe and for the purpose of assuring compliance with any law,
regulation, or instruction which the Secretary of the Treasury or the
Customs Service is authorized to enforce, cause inspection, examination,
and search to be made of the persons, baggage, and merchandise
discharged or unladen from such vessel, whether or not any or all such
persons, baggage, or merchandise has previously been inspected,
examined, or searched by officers of the customs.

(June 17, 1930, ch. 497, title IV, Sec. 467, as added June 25, 1938, ch.
679, Sec. 11, 52 Stat. 1083; amended Pub. L. 91-271, title III,
Sec. 301(g), June 2, 1970, 84 Stat. 288.)

Amendments

1970--Pub. L. 91-271 substituted reference to appropriate customs
officer for reference to collector of customs.

Effective Date of 1970 Amendment

For effective date of amendment by Pub. L. 91-271, see section 203
of Pub. L. 91-271, set out as a note under section 1500 of this title.

Effective Date

This section effective on the thirtieth day following June 25, 1938,
except as otherwise specifically provided, see section 37 of act June
25, 1938, set out as an Effective Date of 1938 Amendment note under
section 1401 of this title.

Transfer of Functions

For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 551(d), 552(d), and 557 of Title 6,
Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note
under section 542 of Title 6.
Functions of all other officers of Department of the Treasury and
functions of all agencies and employees of such Department transferred,
with certain exceptions, to Secretary of the Treasury, with power vested
in him to authorize their performance or performance of any of his
functions, by any of such officers, agencies, and employees, by Reorg.
Plan No. 26 of 1950, Secs. 1, 2, eff. July 31, 1950, 15 F.R. 4935, 64
Stat. 1280, 1281, set out in the Appendix to Title 5, Government
Organization and Employees.

FishTail · 02-02-06, 01:20 PM

I use JDLR...Just Doesn't Look Right. I can then usually articulate reasonable suspicion later.

**kimby** · 02-03-06, 05:33 AM

Originally Posted by BEK320

COPS=short attention span

Yeah. Maybe if I could somehow tie my question into sex, especially penis size, it would get more of a response. Actually, that might be helpful to me as well. Anybody have a sexual analogy for reasonable suspicion/probable cause?

**kimby** · 02-03-06, 05:44 AM

Originally Posted by Virginian

I found that in practice, it's relatively simple, as you do what feels reasonable. Then you can look for the correct wording to explain the legality of your actions. Like if a guy tucks something under his shirt as soon as he sees you, and keeps his hand on it and looks at you nervously, you aren't going to say "oh, I have a reasonable articulable suspicion that this guy is..." you're going to say "whoa, wtf is this guy doing?" and act appropriately, THEN figure out how to write it up

That's good that you don't have to decide ahead of time. When do you actually have to figure it out, if ever? When you write your report? In court? When you were a rookie, did you have to think it out more?

**kimby** · 02-03-06, 05:50 AM

Originally Posted by fscf3801

I don't need no stinkin Probable Cause or Reasonable Suspicion....... I can search your, vehicle, luggage, or person if I want to.....

BTW the only way I can do that is because of a border search Because of the nature of our jobs and the vital importance we play in protecting the country from terrorists, and drugs Custom's Officers are exempt from probable cause or reasonable suspicion, if we want to search someone or a vehicle.

Interesting. I never knew that. What if it were something unrelated to terrorism or drugs (if there is anything like that)? Would you have to be more careful?