Probable Cause

                The topic of discussion for this Constitution Monday comes from the Fourth Amendment to the U.S. Constitution:  “The right of the people … no Warrants shall issue, but upon probable cause, supported by Oat or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  This provision guarantees to the American people that they are to be free from arrest except on properly issued warrants.

                W. Cleon Skousen explained, “However, no warrant is required if the person is observed committing the crime and he is apprehended by those who witnessed the offense.

                “Among the most offensive devices used by the Crown against the colonies were the writs of assistance, general warrants allowing officials to engage in `fishing expeditions,’ ostensibly to discover evidence of smuggling contraband goods.  James Otis of Massachusetts became celebrated in 1761 by contesting this form of tyranny in the courts.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 703.)

                William J. Stuntz of The Heritage Foundation explained, “The first half of the Fourth Amendment’s text bans `unreasonable searches and seizures.’  The second half, known as the Warrant Clause, states a set of basic requirements for search warrants – that they must be supported by an affidavit that establishes probable cause, and that they must describe both the location and objects of the search.

                “One its face, the Warrant Clause would appear to be one of the most clearly written clauses in our Constitution.  It requires that warrants be supported by probable cause, that the police officer seeking the warrant swear to the truth of the facts used to support his application, and that, once issued, the warrant describe where the search is to take place and what the officer is allowed to look for.  All this is plain from the text.  Perhaps because they are so plain, the rules just described have not been the subject of much litigation.”

                Mr. Stuntz further explained that the text of this clause did not answer clearly two very important questions:  (1) “What does `probable cause’ mean?  The Fourth Amendment’s text does not say.”  (2) “Are officers ever required to obtain warrants in order to carry out a search or make an arrest?  Again the text leaves the question open, though it implies that the answer is no:  the phrasing of the Warrant Clause limits warrants but does not mandate their use.”

                “Probable cause” was determined by two court cases.  “In Brinegar v. United States (1949), the Supreme Court defined `probable cause’ as information that would lead `a man of reasonable caution’ to believe `that an offense has been or is being committed.’  In Illinois v. Gates (1983), the Court put it more succinctly, describing probable cause as `a fair probability.’  … In most cases `probable cause’ means what the ordinary definition of `probable’ would suggest:  more likely than not….”

                After explaining why the second question is much more complex, Mr. Stuntz explained:  “Thus the original understanding of the Warrant Clause was in one sense clear, and in one sense not….

                “Today’s Warrant Clause doctrine differs from the historical understanding in some important respects….” 

                A quick summary of my understanding of what Mr. Stuntz wrote would be:  Warrants should be issued only by judicial officers or magistrates.  Warrants can be issued without “probable cause” to authorize such things as building and fire code inspections.  Because police investigate crimes and have more power to enforce the law, they normally need to have warrants for “probable cause” – except for (1) Exigent circumstances” – meaning practically impossible; (2) Arrests outside the home;  (3) Searches incident to arrest – if being arrested, officers can search bags, cars, etc.;  (4) Inventory searches – officer can take any belonging the arrestee has in his possession to the police station, and make a record of it; (5) Automobiles can be searched without warrants for “probable cause”; (6) Street stops and frisks – given reasonable suspicion, officer can briefly stop a suspect and frisk for weapons.

                “In addition to these exceptions, there are several categories of searches that involve government officials other than police officers (e.g., searches of lockers by school principals, and government employers searching employees’ file cabinets), or government interests separate from the interest in criminal law enforcement (e.g., searches of vehicles at the nation’s borders, searches of baggage at airports).  Such searches general do not require warrants.”  (See The Heritage Guide to the Constitution, pp. 326-329.)