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What is probable cause and why does it matter in criminal defense? P.2

In our previous post, we began speaking about issue of probable cause and generally what it means in criminal investigation. Probable cause is an important issue to explore not only when building a criminal defense case, but even when one ends up not facing criminal charges.

In the latter case, illegal police investigation tactics can form the basis for civil rights litigation, which is separate from criminal defense, yet still important. Civil rights actions based on false arrest and malicious prosecution both involve allegations of lack of probable cause, either to arrest or to prosecute. Those who wish to pursue such claims should certainly consult with an attorney specializing in this area of law. 

In the context of criminal defense, probable cause is important because prosecutors are required to show that the elements of the criminal charges are satisfied. In cases where probable cause for an arrest is nonexistent or weak, prosecutors will have a weak basis for conviction. In practice, this issue doesn’t come up as often as probable cause as it relates to searches—whether incriminating evidence was legally obtained.

Most of the time, when a law enforcement officer conducts a search, there must be probable cause. Exceptions would be investigations that technically do not constitute searches under the law, or actions which involve an investigative detention, such as a “stop and frisk.” The latter only requires reasonable suspicion, a lesser standard than probable cause.

Mistakes can be made with respect to probable cause, and in our next post we’ll talk a bit about this point. 

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