Category: probable cause

Probable Cause

Probable cause is an exception to the warrant requirement under the 4th Amendment. In other words, police do not need a warrant to arrest a person as long as they have probable cause.

Definition

Probable cause means that the facts known to the officer warrant a reasonable belief that a crime has occurred or that evidence of a crime is located in a specific place. Probable cause is based on the totality of the circumstances and does not need to rely on any one fact. It does not have to be certain and can be based on probabilities and common sense conclusions. (United States v. Martin (2010) 613 F.3d 1295.)

Probable cause requires more than mere suspicion but does not necessitate facts sufficient to establish guilt. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

What Can Police Do if They Have Probable Cause?

Police arrest a person if they reasonably believe that person committed a crime. Police can search an area if they have reason to believe there is evidence of a crime in that area.

Specific Examples

An officer may arrest a person when multiple witnesses identify the suspect as the shooter in a homicide. (Moorer v. City of Chicago (2024) 94 F.4th 715.)

An officer may arrest a felon for unlawfully possessing a firearm after they observe a firearm in their car. (Young v. City of Chicago (2020) 987 F.3d 641.)

An officer may arrest a person when they observe facts consistent with drug transportation based on their previous experience with drug transportation. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

Insufficient Probable Cause

An officer cannot arrest a person based on their presence at a suspected stash house and traveling in an indirect route to their location. (United States v. Cervantes (2012) 678 F.3d 798.)

An officer cannot arrest a person for being near a crime without indications that the person is involved in the crime. (Williams v. City of Chicago (2013) 733 F.3d 749.)

An officer cannot arrest a person for possessing marijuana unless there is some indication the marijuana is being possessed or sold unlawfully. (People v. Lee (2019) 40 Cal.App.5th 853.) If you believe officers arrested you without probable cause, you should consult an attorney. You could contest your arrest in court and ask the judge to suppress evidence obtained unlawfully by police. You can also file a complaint or sue the police for their unlawful arrest.

Can Police Pull You Over For Swerving?

The answer is yes. Police can pull you over for swerving, even if you do not swerve into other lanes.

Swerving Into Other Lanes

Police can lawfully pull you over for any violation of the Vehicle Code. Swerving across lanes lines is a violation of California Vehicle Code § 21658.

California Vehicle Code § 21658 requires drivers to:

  • Drive as nearly as practical within one lane;
  • Change lanes only when it is reasonably safe.

A driver violates this law by driving in two lanes at once (lane straddling), or drifting into a lane when it is not safe.

The punishment for violating section 21658 is a fine. The level of offense is infraction. This means violating this law does not result in jail or prison confinement.

Swerving Inside Your Lane

It is not a violation of the Vehicle Code to drift within one lane. (United States v. Colin (2002) 314 F.3d 439.) In fact, it is normal for a vehicle to move side to side within a lane as it travels. But police can still pull you over for drifting inside a lane. How is this possible?

Answer:

Police can pull you over for swerving because it is considered erratic driving under California case law. Erratic driving gives police reasonable suspicion to believe the driver is impaired. Therefore, police can initiate a traffic stop even though the swerving does not violate the vehicle code.

Examples of “Erratic” Driving:

Summary

Swerving over the lane line is a violation of the California Vehicle Code, punishable as an infraction. It gives police reason to initiate a traffic stop. However, even if the swerving occurs within a lane police can initiate a traffic stop to determine whether the driver is impaired (IE: under the influence of drugs or alcohol or experiencing a medical emergency).

Because vehicles seldom drive perfectly straight, police have the power to stop practically any vehicle.

Do you think this law gives police too much power? You should raise your concerns with your state representative or senator.

Police Stops and Your Rights

tips on safely interacting with police during stops

Knowing your duties, rights, and law enforcement objectives can help you safely navigate an encounter with law enforcement. Below is a brief discussion of things to consider if the police stop you.

step 1: know your dutiespolice

police

Identify Yourself

You must identify yourself if police have probable cause to believe you committed a crime, have a warrant for your arrest, or are in violation of probation or parole.

Provide Your Driver’s License

You must provide your driver’s license if you are pulled over while driving.

Probation or Parole

You must admit that you are on probation or parole if doing so is a condition of your probation or parole.

step 2: know your rights

police

Remain Silent (5th Amendment)

Except for the duties above, you are not required to respond to questions.

Refuse Search (4th Amendment)

You do not have to allow police to search you, your possessions, or your vehicle, unless submitting to search is a condition of probation or parole.

Ask if You are Free to Leave (4th Amendment)

If you are not free to leave, law enforcement must have a reason for detaining you.

step 3: know the police

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Authority

Authority figures do not like signs of disrespect, such as being ignored, or rude, impolite, or offensive behavior.

Crime-fighting

The modern policing focuses on crime-fighting. If police believe you are obstructing or delaying them from this objective, the could arrest you or use force against you.

Armed

Consider that most police are armed and some carry fully automatic assault weapons.

Immunity

Officers are immune to most civil lawsuit and rarely face criminal prosecution or internal discipline. Therefore, police have few if any consequences for harming you or violating your rights.

What Can I Say to Police?

  1. I respect law enforcement and the job you do.
  2. However, I am not going to consent to a search of myself, my property, or my vehicle.
  3. I will not resist you, but I will not consent to my detention, search, or seizure.
  4. Nor will I answer any questions without my lawyer present.
  5. With that being said, am I free to leave?

What Can I Do if Police Violated My Rights?

If you can prove police misconduct, the judge could dismiss your criminal case. You could also sue the law enforcement for violating your established constitutional rights.

Can Police Search if They Smell Marijuana?

Can Police Search Me if They Smell Marijuana?

With some exceptions, police may not search a suspect or his/her property solely because they smell marijuana.

Proposition 64, known as the Adult Use of Marijuana Act, was enacted November 9, 2016. It prohibits a search based on legal possession or use of marijuana.

In order to conduct a search, police must have reason to believe the marijuana possession or use is illegal or that the suspect is engaged in some other illegal activity (In Re D.W.).

What Can Police Do if They Smell Marijuana?

Police MAY investigate further based on the smell or issue a notice to appear in court. Below is a discussion of some scenarios where police can arrest a suspect when they smell marijuana.

smell marijuana

Driving Under the Influence

Driving a vehicle while “under the influence” of marijuana is illegal under Vehicle Code Section 23152(f).

Police may arrest the driver if they have probable cause to believe the driver is under the influence of marijuana.

Illegal Marijuana Activity

Police may arrest a suspect if they have probable cause to believe the suspect is illegally using, transporting, cultivating, selling, possessing marijuana, or manufacturing concentrates. See Health & Safety Code Sections:

smell marijuana

Search Incident to Lawful Arrest (“Sila”)

Police may search a suspect who in the process of being arrested or has been placed under arrest.

Police may search a suspect and the suspect’s immediate area for weapons or evidence that can be concealed or destroyed (Chimel v. California).

Probable Cause

Probable cause means law enforcement is aware of facts and circumstances that would lead a reasonable person to believe that the person is guilty of a crime (Brinegar v. United States).

smell marijuana

Probable Cause for Marijuana-related Crimes

Common facts and circumstances used by law enforcement to support probable cause include:

    • Smoke or paraphernalia in car.
    • Smell marijuana smoke on hands or breath.
    • Strong smell of marijuana in vehicle.
    • Appearance and actions of driver.
    • Failed field sobriety test(s) (ok to refuse).
    • Suspect confesses to illegal conduct.
    • Pay/owe sheets, scales, large quantities of money.
    • Driver is sole occupant and/or car full of luggage.

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