What is the difference between probable cause and reasonable suspicion?
Many people, including lawyers, do not draw a clear distinction between probable cause and reasonable suspicion. This article explains the differences between the two standards granting the police the authority to stop, detain and search an individual.
Any analysis of a search and seizure must begin with the Fourth Amendment. Both the Michigan and the United States constitutions protect citizens from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. The key word is “unreasonable” searches and seizures. The constitutions do not forbid searches and seizures, only unreasonable ones. Text of Fourth Amendment
Whether a search is “reasonable” for Fourth Amendment purposes depends upon the facts of each individual case. When courts examine whether a search is reasonable, they apply a balancing legal test. Essentially, to determine if a search and seizure is valid, the degree of intrusion necessary to investigate possible wrongdoing is measured against a person’s expectation of privacy.
In order for the police to show that a search and seizure was legal, law enforcement must show that they possessed a valid warrant or the search and seizure fell within one of the many exceptions to the Fourth Amendment warrant requirement.
During my discussions with clients, they often say that the police did not have probable cause to seize their vehicle during a traffic stop. There is often confusion regarding what type of suspicion an officer must possess to temporarily detain an individual. The confusion is often furthered by television shows, police reports, movies, etc. Typically law enforcement has the authority to stop, detain and search an individual based upon probable cause and reasonable suspicion. There is a distinct difference between probable cause and reasonable suspicion. When a police officer stops a vehicle it is often on the basis of reasonable suspicion. This standard requires less than that necessary for probable cause.
Reasonable suspicion explained
The distinction between probable cause and reasonable suspicion is defined in the United States Supreme Court case of Terry v. Ohio in 1968. Terry held that under certain conditions law enforcement may approach and temporarily detain a person for the purpose of investigating possible criminal behavior despite the fact that the officer does not have probable cause to justify an arrest.
The brief detention by the police does not violate the warrant requirement of the Fourth Amendment if the officer has a reasonable and articulable suspicion that criminal activity is currently taking place. Whether a police officer possesses reasonable suspicion to make such an investigatory stop is determined case by case, on the basis of an analysis of the totality of the facts and circumstances.
So, a police officer can temporarily detain a person if the officer has a reasonable suspicion (belief) that the individual has recently committed, is committing, or is about to commit a crime or possesses a reasonable belief that the person may be armed and presently dangerous. Reasonable suspicion must be based on specific facts and not simply based on a hunch. Also, when the officer conducts a pat down search for weapons, the officer is not allowed to manipulate the items to determine its nature. Since Terry v Ohio this type of search is known as a Terry frisk or stop and frisk.
Reasonable Suspicion and Traffic Stops
The Terry standard is also applied to traffic stops. In Terry, the Supreme Court reasoned that a traffic stop is only a minimal level of intrusion into a person’s freedom. In that sense, the brief detention is justified by reasonable suspicion rather than the “probable cause” standard for an arrest. In that sense, if the officer reasonably believes you committed a civil infraction – you can be briefly detained and questioned.
Difference between probable cause and reasonable suspicion
The level of suspicion justifying a brief detention premised on “reasonable suspicion” is not as high as that needed for probable cause. A police officer has the authority to stop and briefly detain a person for investigative purposes if he or she possesses reasonable suspicion that wrongdoing has occurred even if the officer does not have probable cause to make an arrest. A stop based on reasonable suspicion can often lead to probable cause to make an arrest.
- Reasonable suspicion
A brief detention by the police is justified if the officer has reasonable and articulable facts that lead the officer to believe that criminal activity is currently taking place. Reasonable suspicion must be more than a guess or hunch. However, it is less than probable cause. Where probable cause views the facts from a reasonable person standard, reasonable suspicion is viewed from the officer’s perspective. Reasonable suspicion is a standard that is more than a hunch but below a preponderance of the evidence.
For example, a police officer may have possess reasonable suspicion to briefly detain someone who fits the description of a suspect, immediately runs or evades the police after seeing the officer in a high crime area, or drops an object after seeing police.
- Probable cause
Probable cause consists of the logical belief, supported by specific facts and circumstances, that a crime has been, is being, or will be committed. The requirements do sound similar to the definition of reasonably suspicion. This is how confusion occurs. In simple terms, probable cause requires a higher degree of certainty that a crime is currently in progress or had been committed.
If an officer wants to search and seize evidence, the officer must have probable cause, that is, the the officer has to articulate sufficient facts that would lead a reasonable person to believe that evidence of a crime or contraband relating to a crime will be found in the location to be searched.
When does a police officer need probable cause?
A police officer must have probable cause to make a warrantless arrest. As defined, probable cause occurs when “apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution.” Law enforcement must also possess probable cause if the police want the court to issue a search or arrest warrant.
The key differences between probable cause and reasonable suspicion
In an oversimplified way the difference can be summarized in the following manner: probable cause means there exists concrete and clear evidence of a crime, whereas reasonable suspicion is subject to broader interpretation of the facts.
So, while probable cause requires a high degree of certainty that a person has committed a crime to legally support an arrest for example, reasonable suspicion only requires the officer articulate facts indicating the “appearance” of a crime.
The degree to which an officer can search a person is also controlled by the level of suspicion. Reasonable suspicion cannot justify an arrest. A person stopped under reasonable suspicion can only be pat down for weapons or things that readily appear to be a weapon or contraband. On the other hand, probable cause can support and justify an arrest and a greater intrusion into a person’s privacy interests. Probable cause must exist for the police to arrest someone or obtain a search warrant.
It is clear that the United States Supreme Court has defined “reasonable suspicion” as a lower standard than probable cause. To use language directly from the USSC, in Alabama vs. White 496 US 325, the court held:
“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.”
While reasonable suspicion is required to justify a brief stop and frisk, probable cause is required for a warrantless arrest or search and seizure. To simplify, “probable cause” can be seen as concrete and solid evidence of a crime. “Reasonable suspicion”does not equate to that level of clarity or belief. Since reasonable suspicion is a sufficiently weaker or lower standard than probable cause, an officer possessing reasonable suspicion is limited in how and what the officer can search.
Probable cause and reasonable suspicion are related but yet very different legal standards. Both standards give the police that authority to detain a person. Both allow a “search.” However, the similarities end.
Reasonable suspicion is a lower standard than probable cause. It limits what an officer can do. While probable cause is more akin to a concrete belief or strong probability that a crime has occurred, reasonable suspicion is strong suspicion.
As you can see from this article, there can be a great deal of confusion regarding the legality of a search and/or seizure. Fourth Amendment law is complex. To make it even more troublesome, the exceptions to the fourth Amendment tend to consume the rule.
If you believe that the police have violated your Fourth Amendment rights you should contact and attorney to discuss your case. A Fourth Amendment claim involves an extensive analysis of the facts of the case including a discussion with you as to what occurred when you encountered the police.
We have been very successful in making Fourth Amendment challenges to illegal searches and seizures. We have conducted evidentiary hearings where the courts have suppressed evidence according to the exclusionary rule. As a result our clients’ cases had to be dismissed.
You can reach us 24-7/365.
JAMES E. CZARNECKI II (586) 718-2345
GENEVIEVE L. TAYLOR (586) 350-6044