arrest Archives

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.

DUI Arrest and Investigation

A DUI arrest begins with a law enforcement encounter, followed by a DUI investigation, and eventually an arrest.

A DUI arrest starts with an encounter with law enforcement. The following are the most common ways that law enforcement encounters a DUI driver:

Checkpoints
Traffic Stops
Accidents
Stopped Vehicle

Preliminary Investigation

Officers start by making contact with the driver of the vehicle and asking them to roll down their windows. They ask the driver for their license, registration, and proof of insurance. Although you are required to provide this documentation, you are not required to roll down your window all the way when you do so. Rolling the window down allows officers to get close enough to the driver to observe signs of alcohol intoxication. Typically officers will note an “odor of alcohol emanating from the driver” “red or watery eyes” and “slurred speech.” If officers observe these indicators, they will initiate a DUI investigation by asking you to step out of your vehicle. You may decline to exit your vehicle if an officer asks. However, if an officer lawfully orders you to exit your vehicle, failing to exit can result in additional criminal charges of delaying arrest.

DUI Investigation

Officers usually ask DUI suspects to perform field sobriety tests during the DUI investigation. Common field sobriety tests include: walk the line, stand on one leg, follow the finger (also known as Horizontal Gaze Nystagmus), and count to 30. Another common sobriety test is the preliminary alcohol screening device, which takes a breath sample. You may refuse all tests prior to your arrest, unless you are on parole or probation.

DUI Arrest

If the officer has enough indications that you are driving under the influence, they will typically ask you to stand so that they can handcuff and arrest you. Once arrested, you must provide a sample of your blood, breath, or urine for purposes of determining your blood alcohol content (BAC). If you refuse, the DMV could suspend your license for one year under Vehicle Code section 23612.

Once you are arrested, officers typically take you to jail and impound your vehicle. However, it is possible that officers will not arrest you and will issue you a notice to appear instead. Similarly, officers can release your vehicle to a sober friend or relative instead of impounding it.

Officers will also take your driver’s license and provide you with a temporary paper license good for 30 days.

Declining to cooperate

As noted above, there are certain parts of the DUI arrest that you can decline. However, failure to provide your license, registration or insurance, failure to obey a lawful order, and failure to provide a blood alcohol sample after arrest can result in additional criminal charges. If you decline to participate, make sure that is your right, and be respectful to the officer when you do so.

I Just Got Arrested, Now What?

After you are arrested, continue to assert your 4th Amendment right to refuse search (except when arrested for DUI) and 5th Amendment right to remain silent.

right to remain silent

It is very important to remain silent because your own statements can be used to convict you. Wait until your attorney is present before you make any statements to police.

Statements that seem innocent such as, “I didn’t mean to do it,” “I drank much earlier today,” or “he pushed me first,” are actually confessions to a crime.

Tips and Tricks to Remaining Silent

Confessions are an easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to remain silent, the police have developed strategies to get you to talk.

“if you didn’t do anything wrong, tell me what happened.”

You may be guilty of a crime even though you didn’t do anything “wrong.” For this reason, it is best to say nothing to police until your attorney is present.

waiting for you to start talking

If you start a conversation with police, you have waived the right to remain silent. Remember: “Any statements you make can be used against you in a court of law.”

“you have the right to remain silent…”

The Rule

If police do not give you this well-known Miranda warning, your confession could be excluded from criminal proceedings.

Miranda Limitation

However, the Miranda rule only excludes confessions that occur during “custodial interrogations.” Those are interrogations that occur in police custody, typically in a holding area or at a jail.

Police Strategy

Police usually follow the Miranda warning with “Do you want to waive these rights and talk to me?” You can invoke your right to remain silent by stating, “No. I don’t want to talk to you.” If you remain silent, police may continue to talk to you. You can re-invoke your right at any time by saying “I don’t want to say anything else, I want to talk to a lawyer.”

right to refuse search

It is also important to refuse search because evidence found during the search can be used to convict you. If you consent to search of your property, you waive your right to contest the search in court.

Exception: Arrested for DUI

If you are arrested for DUI, you must provide a blood, breath, or urine sample to determine you blood alcohol concentration (BAC). Failure to provide a sample can result in additional criminal charges AND further DMV action against your license.

Tips and Tricks to Refuse Search

Consensual search is any easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to refuse search, the police have developed strategies to convince you to consent.

“sign a consent to search form to get your phone back”

If police believe there is evidence of a crime on your phone, they will not return it to you unless you consent to search. We all “need” our smart phones, but you will likely be better off refusing search and picking up a temporary phone.

“if you don’t consent, we will get warrant”

You have the right to insist police obtain a warrant, except when you are arrested for DUI. Requesting a warrant will delay the police, so be polite and let them know you respect them and their job.

“if you have nothing to hide, let us search”

Your personal items are private and you have the constitutional right to refuse search.

“if you work with me, I’ll work with you”

Even if you cooperate with police, they are not legally required to help your case.