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What is probable cause and why does it matter in criminal defense? P.1

In recent posts, we’ve been speaking about the Fourth Amendment and privacy rights, particularly as these issues can come up in criminal defense work. As we’ve noted, every criminal suspect has certain privacy rights, and law enforcement officers are required to respect these rights and do their job accordingly. When they don’t, a criminal defendant has protections available

One of the terms used in the Fourth Amendment is “probable cause,” which is an important concept in law enforcement and criminal prosecution and defense as well. Probable cause refers to the basis upon which law enforcement conducts a search or makes an arrest. The Fourth Amendment requires that warrants be issued only on the basis of probable cause, but probable cause is not specifically defined, either with respect to when warrants can be issued or when warrantless searches or arrests can be made. 

What exactly is probable cause, then? Speaking generally, probable cause is the reasonable belief that a crime has been or is being committed. Probable cause takes the totality of the circumstances and facts into account. Probable cause is, according to court decisions, not a precise concept, but a fluid one, and is flexible enough to allow officers to be effective and practical in their work.

At the same time, probable cause is a definite standard upon which officers must base their arrests, searches and seizures. In our next post, we’ll say more on this point and talk about the importance of working with an experienced criminal defense attorney whey this issue comes up in criminal investigation.

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