Probable Cause, Arrest and Search

The Fourth Amendment of the US Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized,” (Fourth Amendment, 1791).Thus, in various activities of law enforcement agencies, this constitutional provision seek to safeguard and protect the rights of those accused of a crime without however neglecting the right of the State to protect its citizens from criminal elements (Barker and Barker, 1982). In this light, various questions which would put to test the essence of this relevant provision would be seen in the following circumstances which would be cited. Arrest Warrant Law enforcement work is said to be subjected to the limits of the Fourth Amendment.For instance, in a case where a law enforcement officer has probable cause to arrest a defendant for armed assault, and he also has probable cause to believe that the person is hiding in a third person’s garage, which is attached to the house, the question which comes up is what warrants, if any does the officer need to enter the garage to arrest the defendant.

Also in the instance when a defendant is known to be injured and unarmed, what usual procedure is made in the execution of the warrant.In this case, the law enforcement officer needs to secure an arrest warrant and also a search warrant. As provided for in Rule 4 of the Federal Rules of Criminal Procedure, “If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it,” (Cornell Law, n. d.

).In the same rule, it provides that a warrant must contain the following a) the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty; b) describe the offense charged in the complaint; c) command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer; and d) be signed by a judge (Cornell Law, n. . ). In the execution of the said arrest warrant, only a marshal or other authorized officer may execute a warrant (Cornell Law, n.

d. ). A warrant may be executed, or a summons served, within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest (Cornell Law, n. d. ).

A warrant is executed by arresting the defendant and upon arrest, an officer possessing the warrant must show it to the defendant (Cornell Law, n. d. ).If the officer does not possess the warrant, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request, must show the warrant to the defendant as soon as possible (Cornell Law, n. d.

). This rule should govern specially in an instance when the defendant is injured and unarmed. Hence, the manner of execution of warrants is generally governed by statute and rule, as to time of execution, method of entry, and that before an officer could break and enter he must give notice of his office, authority, and purpose and must in effect be refused admittance (Findlaw, n. .

).Finally, under Rule 41 of the Federal Rules of Criminal Procedure, the magistrate or judge within the district who has the authority to issue a search warrant after receiving an affidavit or other information if there is probable cause to search for or seize a person or property (Cornell Law, n. d. ).

Probable Cause in Relation to Arrest and SearchProbable cause is said to be concerned with the question of whether the affiant had reasonable grounds at the time of his affidavit for the belief that the law was being violated on the premises to be searched and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant, (Dumbra v. United States, 268 U. S. 435, 439, 441 (1925).

Probable cause is essential in both arrest and search.But there are instances where there is probable cause to search but not probable cause to arrest or where there is probable cause to arrest but not probable cause to search. There may also be an instance in which there is probable cause to arrest and to search. The US Constitution requires that arrest warrants describe the person to be seized with specificity (Subin et al. , 1993). The requirement is fulfilled when the caption of the action contains the name of the defendant or, if his or her name is unknown, any name or description by which he can be identified with reasonable certainty (Subin et al.

1993).In Chimel v. California, the police had then a warrant for his arrest for burglarizing a coin shop, on the basis of the existence of a probable cause (Chimel v. California, 395 U. S.

752). However, the Supreme Court sided with Mr. Chimel and stated that although the police were justified in searching Mr. Chimel and the immediate area at the time of his arrest, there was no justification for routinely searching any room other than that in which the arrest took place (Chimel v. California, 395 U.

S. 752).In this case, although there was probable cause to arrest the said person, there was no probable cause to search the room other than where the arrest took place. On the other hand, when there has been a search warrant based on a probable cause to search a home containing prohibited drugs, and such law enforcer executes a warrant to search, the persons within the said premises where prohibited drugs are hidden cannot be arrested if there is no warrant of arrest based on a probable cause unless at that time they are committing or has just committed a crime. Probable cause may exist in both the arrest and the search.In Gustafson v.

Florida (414 U. S. 260), the officer upon arresting petitioner for the offense of driving his automobile without possession of a valid operator's license, and taking him into custody, was entitled to make a full search of petitioner's person incident to that lawful arrest. Having in the course of his lawful search come upon the box of cigarettes, he was entitled to inspect it and when his inspection revealed the homemade cigarettes which he believed to contain an unlawful substance, he was entitled to seize them as "fruits, instrumentalities, or contraband" probative of criminal conduct (Gustafson v. Florida , 414 U.

S. 260).Existence of Probable Cause Mr. A walks into a police station, drops three wristwatches on a table, and tells an officer that Mr.

B robbed a local jewelry store two weeks ago and Mr. A will not say anything else in response to police questioning. After a quick investigation it revealed that the three watches were among a number of items stolen in the jewelry store robbery.A question that would arise from this is whether or not the police have probable cause to arrest Mr. A. , arrest Mr.

B, search the home of Mr. A or search the home of Mr. B. Existence of probable cause to justify an arrest or a search without warrant is lacking in the case at bar. As provided in the case of Devenpeck et al.

v. Alford, a warrantless arrest by an officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed (543 U. S. 146).Probable cause to arrest exists where the facts and circumstances within the officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a person of a reasonable caution in the belief that an offense has been or is being committed (Black, 1990).

A probable cause for an arrest, is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty (Kalkanes v. Willestoft, 124 P. 2d 219, 220, 13 Wash. 2d 127).

Thus, in the case at bar, the existence of facts and circumstances sufficient to warrant a reasonable caution in the belief that an offense has been committed is not within the officer’s knowledge. Although the act of Mr. A in putting jewelries on the table which were later found to have been subject of stolen property, is not enough to sustain a mere suspicion or belief that a crime has been committed. In this situation, it is still essential that there must be a warrant in order to arrest either Mr. A or Mr.

B. Search warrant is also needed in order to search the homes of both Mr.A and Mr. B.

As provided in the case of Montgomery v. Dennison (69 A. 2d 520, 526, 363 Pa. 255), probable that would justify charge of an indictable offense does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party publishing the charge and it must be found in circumstances of adequate probative force, lying within personal knowledge or information derived from sources of such a character as to lead a reasonably prudent man to regard it as trustworthy (Montgomery v.

 Dennison 69 A. 2d 520, 526, 363 Pa. 255). In the case at bar, the information constituting the crime is not within the personal knowledge of the police officers. Hence, search warrant for a determination of a probable cause is still needed.