Probable cause theory

[Kevinskisfast]

Jurisdiction

Georgia

Hello everyone. I am a law student who is prepping for a debate for class involving probable cause theory as it relates to searching and search warrants. The premise of the debate is as follows:
An individual (we'll call her Jill) receives a very threatening email promising harm to her and her family. Jill contacts the police stating that she is in fear for her life and gives the email to the police to investigate who wrote it. Jill and her family all state that they believe her crazy ex boyfriend wrote it and say he needs to be jailed. During their investigation, the police track the i.p. address to an online anonymous mailer that does not keep logs of it's users. The police know that if they can search the crazy ex-boyfriend's online history, they may find some evidence.
So here's the question: do they have probable cause to do so under these circumstances? I don't believe they do due to no actual connection to the victim save the victim's statement. What do y'all think?

 

[Kevinskisfast]

Of course I'm doing my own research. My research has shown me that in the US there are jurisdictions that interpret the law that align with my stance, those that don't, and everything in between. There is no absolute. My team and I have to make a case for our viewpoint, just as those do who oppose it. I was simply asking for some extra perspective. As a student, I don't have to tell any veteran attorneys out there that the law is like religion. Our country has its own just as other countries have their own, and every court justice can interpret it how they see fit. If laws in the US were absolute, no mercy would be shown. An easy example to demonstrate this is traffic infractions. Take my last three speeding tickets. Two I had to pay, and one I didn't. I pled nolo for all three. What's interesting is that it was the most recent one where the judge let me off the hook due to a medical emergency I could show in court. The law says he should have made me pay a hefty fine, but like magic the fine was circumvented.
So again, I asked my original question for some perspective.

 

[adjusterjack]

OK, I've deleted my sarcasm. I subscribe to the philosophy: Give a man a fish and he eats for a day, teach him to how to fish and he eats for a lifetime. Before I help you, let's see what you know.

The question involves whether or not the police have probable cause for a search of a suspect's online history.

Your opinion, based on an unidentifiable email and the girlfriend's allegation, is that they don't.

What have you come up with, so far, to support that opinion?

Provide points and authorities.

 

[flyingron]

Give a man a fish, he eats for a day.
Teach a man to fish, and he'll sit in a boat all day drinking beer.

 

[army judge]

so here's the question: do they have probable cause to do so under these circumstances?

Probable Cause
Primary tabs
Definition
Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). Under exigent circumstances, probable cause can also justify a warrantless search or seizure. Persons arrested without a warrant are required to be brought before a competent authority shortly after the arrest for a prompt judicial determination of probable cause.

Constitutional Basis
Although the Fourth Amendment states that "no warrants shall issue, but upon probable cause", it does not specify what "probable cause" actually means. The Supreme Court has attempted to clarify the meaning of the term on several occasions, while recognizing that probable cause is a concept that is imprecise, fluid and very dependent on context. In Illinois v. Gates, the Court favored a flexible approach, viewing probable cause as a "practical, non-technical" standard that calls upon the "factual and practical considerations of everyday life on which reasonable and prudent men [...] act".1 Courts often adopt a broader, more flexible view of probable cause when the alleged offenses are serious.

Application to Search Warrants
Probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered.7 For a warrantless search, probable cause can be established by in-court testimony after the search. In the case of a warrant search, however, an affidavit or recorded testimony must support the warrant by indicating on what basis probable cause exists.8

A judge may issue a search warrant if the affidavit in support of the warrant offers sufficient credible information to establish probable cause.9 There is a presumption that police officers are reliable sources of information, and affidavits in support of a warrant will often include their observations.10 When this is the case, the officers' experience and training become relevant factors in assessing the existence of probable cause.11 Information from victims or witnesses, if included in an affidavit, may be important factors as well.12

The good faith exception that applies to arrests also applies to search warrants: when a defect renders a warrant constitutionally invalid, the evidence does not have to be suppressed if the officers acted in good faith.13 Courts evaluate an officer's good faith by looking at the nature of the error and how the warrant was executed.14

Probable Cause in the Digital Age
While the Fourth Amendment's probable cause requirement has historically been applied to physical seizures of tangible property, the issue of searches and seizures as applied to data has come to the Supreme Court's attention in recent years.

In Riley v California (2014), the Supreme Court held: "The police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested." This would seem to group cell phones in with traditional items subject to traditional court tests and rules for searches and seizures.

Riley, however, did not end the inquiry into digital data's interaction with the Fourth Amendment. For the 2018 term, the Supreme Court has agreed to hear Carpenter v. United States. Carpenter, accused of several robberies, was arrested after "his phone company shared data on his whereabouts with law-enforcement agents."

Mr. Carpenter is challenging the "constitutionality of the Stored Communications Act, a law permitting phone companies to divulge information when there are 'specific and articulable facts' that are 'relevant and material' to a criminal investigation." His complaint states that "his privacy rights under the Fourth Amendment were violated when his phone company shared data on his whereabouts with law-enforcement agents." This case will likely have a significant impact on the role that probable cause plays in the ability of data companies to share user information with law enforcement.

1. See Illinois v. Gates, 462 U.S. 213, 232 (1983).
2. United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).
3. Prosecutor's Manual for Arrest, Search and Seizure, § 6-6(b) (2004).
4. See Mapp v. Ohio, 367 U.S. 643 (1961), at 648, 655.
5. See Ariz. v. Evans, 514 U.S. 1 (1995).
6. People v. Boyer, 305 Ill. App. 3d 374 (1999), at 379-80.
7. See Gates, 462 U.S. at 238.
8. Whiteley v. Warden, 401 U.S. 560, 564 (1971).
9. Prosecutor's Manual for Arrest, Search and Seizure, § 3-2(c) (2004).
10. See Franks v. Delaware, 438 U.S. 154, 171 (1978).
11. See United States v. Mick, 263 F.3d 553, 566 (6th Cir. 2001).
12. See United States v. Schaefer, 87 F.3d 562, 566 (1st Cir. 1996).
13. See United States v. White, 356 F.3d 865 (8th Cir. 2004).
14. See, e.g., United States v. Clark, 638 F.3d 89, 100–05 (2d Cir. 2011)

Probable Cause

This isn't about what I say, or even know.

This is the argument ONLY you must make, dear poster.

Better yet, dear poster, do YOU believe the police possess the requisite "probable cause" (as defined by law) to pursue what some term the "perp", the former friend?

Mere suspicion is nothing more than mere suspicion.
Suspicion can be present, and probable cause will never make an appearance.
Think of it this way, poster.
Mere suspicion can provide a law enforcement officer a reason to stop a person, but maybe not arrest the person.

The Difference Between Reasonable Suspicion and Probable Cause - Doyle Schafer McMahon LLP

That, dear poster, is why many crimes go unsolved.

On the other hand, that also ensures that society doesn't incarcerate innocents on suspicion alone, absent evidence and proof.

Looking/behaving guilty doesn't mean a person is guilty.


BTW, here are some very useful discussions about suspicion vs. probable cause:

Probable Cause Versus Reasonable Suspicion | Maricopa County, AZ

Reasonable Suspicion

https://www.hg.org/legal-articles/reasonable-suspicion-and-probable-cause-defined-49914

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1133&context=penn_law_review_online

https://justice.utah.gov/Documents/Sentencing/ProsecutionManual/chapter6.pdf

Probable Cause vs. Reasonable Suspicion | Colorado Springs Criminal Defense Blog

 

[adjusterjack]

I guess I'm not needed in this thread anymore.

Gone Fishing. LOL.

 

[army judge]

I guess I'm not needed in this thread anymore.

Gone Fishing. LOL.

You taught so many to work, fish, and/or farm.

That should make you feel warm all over, pappy.

Your youngins is all grewed up.

 

[zddoodah]

I agree that it's somewhat inconclusive? What does your jurisdiction's cases say about situations where it's inconclusive? On what side should the judge err?

What side are you arguing?

 

[Kevinskisfast]

OK, I've deleted my sarcasm. I subscribe to the philosophy: Give a man a fish and he eats for a day, teach him to how to fish and he eats for a lifetime. Before I help you, let's see what you know.

The question involves whether or not the police have probable cause for a search of a suspect's online history.

Your opinion, based on an unidentifiable email and the girlfriend's allegation, is that they don't.

What have you come up with, so far, to support that opinion?

Provide points and authorities.

First, thank you all for your insights. Adjusterjack, my opinion is supported on the premise that facts, evidence, and truth must always work together and never separate. Facts must always be true AND serve as evidence to warrant a search. If these three are present, then probable cause has been demonstrated. I also believe that it is the duty of law enforcement to perform a preliminary investigation to arrive at a point where probable cause can be determined. Like Army Judge said above, you can't just issue a search warrant based upon suspicion. Any suspicion needs to be investigated with the leads/evidence available in order to PROVE probability.
I'd like to add that some of my debate opponents feel that suspicion alone warrants a search because in the instance I gave above, people's lives are possibly in mortal danger. They also feel that an officer's oath to uphold the law can be executed based upon suspicion. This appears to be akin to states with "stand your ground" laws--shoot first, ask questions later. My view is that if officers could treat searches like "stand your ground", then what good is the 4TH amendment? Anyone else? We all debate at the end of the week. I'm chomping at the bit.

 

[adjusterjack]

Adjusterjack, my opinion is supported on the premise that facts, evidence, and truth must always work together and never separate.

That's not what I asked for. I asked for points and authorities, which is what Army Judge very skillfully provided. The concept seems to have eluded you. Your last post was still unsupported opinion. You don't win a debate by spouting philosophy. If you expect to win your debate you are going to have to cite case decisions that narrowly address the probable cause needed for a search of a suspect's online history.

 

[Kevinskisfast]

That's not what I asked for. I asked for points and authorities, which is what Army Judge very skillfully provided. The concept seems to have eluded you. Your last post was still unsupported opinion. You don't win a debate by spouting philosophy. If you expect to win your debate you are going to have to cite case decisions that narrowly address the probable cause needed for a search of a suspect's online history.

Understood, and thank you. I will dig deeper.

 

[army judge]

This appears to be akin to states with "stand your ground" laws--shoot first, ask questions later.

You misunderstand and misstate the premise of stand your ground laws.

I suggest you not use stand your ground laws to illustrate your point.

Self help remedies are fraught with great risk, and are far more complicated than most people imagine.

 

[zddoodah]

Facts must always be true AND serve as evidence to warrant a search.

Judges assume that facts stated in a probable cause affidavit are true unless the affidavit gives reason to believe otherwise, but if a fact turns out not to be true, that doesn't negate the existence of probable cause. I'm not sure what you mean by "AND serve as evidence."

If these three are present, then probable cause has been demonstrated.

Ummm...no. Probable cause exists if the evidence makes it more likely than not that whatever is alleged (e.g., that Person X committed a crime or that certain evidence may be found in a particular location) is true. In other words, "truth" is not part of the equation to arrive at probable cause. Moreover, no one is searching for absolute truth. To paraphrase Indiana Jones, if it's truth you're interested in, check out the philosophy class right down the hall.

Any suspicion needs to be investigated with the leads/evidence available in order to PROVE probability.

One does not "prove probability." Since probability means "more likely than not," the notion of proving probability is an oxymoron. Also, investigating suspicion is probably the biggest reason why a law enforcement officer may need a search warrant.

some of my debate opponents feel that suspicion alone warrants a search because in the instance I gave above, people's lives are possibly in mortal danger.

People's lives are always possibly in mortal danger, so that's a really silly point. That said, if there is an legitimate likelihood of harm, judges will often issue warrants on less evidence than otherwise might be required if that likelihood didn't exist. However, mere suspicion never justifies a finding of probable cause.

Anyone else?

You ignored the questions I asked in my prior response. That's unfortunate.

 

[adjusterjack]

Understood, and thank you. I will dig deeper.

I'll give you a hint. There is a Georgia Court of Appeals decision that supports your opinion of no probable cause with regard to a situation very similar to the scenario that is the subject of your debate.

I found it. Can you?

 

[mightymoose]

Facts must always be true

When it comes to warrants and probable cause it is about what is reasonably believed to be true at the time.... It may be found later that what was believed was not true at all, but that does not invalidate the decisions previously made unless proven to be made in bad faith.

If these three are present, then probable cause has been demonstrated

This may be a better definition of "proof" than "probable cause".

 

[Kevinskisfast]

The debate was very interesting. Researching cases that support my point were vast, but so were those on the opposing side. The most frustrating thing about it was that the prof was the moderator but every time it was someone's turn to speak, he would riddle them with devil's advocate questions to steer them off. It appears he has intentions to make us question everything, but it made for less than a real debate. He also would not let either side have direct discourse with each other-just wrong. In the end he concluded that despite any circumstance that makes for probable cause, it is the judge that makes the decision for a search warrant and that the logic of one judge's reason for issuing a warrant can be vice versa with a judge who has a different line of logic. In other words, what's probable with one wont necessarily be probable with another. There is no concrete written code that actually defines the parameters for probable cause-common sense is what decides. IMHO, common sense is a rare commodity these days.

 

[adjusterjack]

it is the judge that makes the decision for a search warrant and that the logic of one judge's reason for issuing a warrant can be vice versa with a judge who has a different line of logic. In other words, what's probable with one wont necessarily be probable with another.

That's probably true enough. But if a judge erroneously issues a warrant, the evidence found can be suppressed either at trial or on appeal.

There is no concrete written code that actually defines the parameters for probable cause-

Yes, there is. It's case law. At the trial and/or appellate level, judges rely on prior case law which is often quite concrete.

In your research did you find State v. Staley, 548 SE 2d 26 - Ga: Court of Appeals 2001? That's the one I referred to earlier.

Read it:

State v. Staley, 548 SE 2d 26 - Ga: Court of Appeals 2001 - Google Scholar

In Staley, warrants were issued by a magistrate (often the bottom of the barrel of judges) based on the affidavit of a probation officer. The first warrant was for the search of Staley's apartment. The second was for a search of Staley's computer where evidence of child pornography (a crime) was found.

Staley moved to suppress the evidence for lack of probable cause. The trial court agreed and so did the appellate court.

"the question is whether the State established any link between Staley's apartment and the alleged molestation of J.D. Because there was no such link, the search of the apartment and the subsequent search of the computer files were illegal"

This is very close to your debated case about the email.

Jill and her family all state that they believe her crazy ex boyfriend wrote it and say he needs to be jailed. During their investigation, the police track the i.p. address to an online anonymous mailer that does not keep logs of it's users. The police know that if they can search the crazy ex-boyfriend's online history, they may find some evidence.

No, the police don't "know," they "speculate" based on the allegations of the recipient and her family. There is no "link" between the email and the ex boyfriend, therefore there is no probable cause for a search warrant. Had the IP address come back to the boyfriend then, yes, there would have been probable cause for a search warrant.

It's true that a judge "could" have issued a warrant based on the affidavit of the police officer but any evidence obtained as a result likely would have been suppressed according to State v. Staley.

Your professor did you no favors leaving you with the belief that

There is no concrete written code that actually defines the parameters for probable cause-

Has he ever practiced at criminal trials, evidence suppression hearings, criminal appeals? Or is he just an academician with initials after his name?

 

[zddoodah]

Researching cases that support my point were vast, but so were those on the opposing side.

Law professors don't want to give argument ("debate" is the wrong word) subjects where one side or the other is the obvious winner. Doing that would make it a terrible exercise for the people who have to argue the losing side and a rather pointless exercise for everyone else.

the prof was the moderator but every time it was someone's turn to speak, he would riddle them with devil's advocate questions to steer them off.

The point of that is to prepare students for the practice of law. This is what judges do. Judges ask questions about what THEY care about and don't give a rip about that nice speech and outline you have prepared.

but it made for less than a real debate.

Define "real debate." If you think a "real debate" is the sort of thing that one does in "debate club," I suggest you, as an aspiring lawyer, abandon that notion as soon as possible.

Etc., etc.

 

[Kevinskisfast]

I have learned alot, and will learn more undoubtedly as I go through school. As I have time, I will read through the links yall have posted above. I hope I haven't been too much of a pest because I can see that some of my statements have irritated some of you. Please accept my apologies.