What is Probable Cause in a Florida Criminal Case?

Florida criminal case statutes and case law afford police and sheriff’s deputies considerable discretion when it comes to initiating stops, establishing contact, and making arrests. However, as any Fort Lauderdale criminal defense lawyer will tell you, that authority is not absolute. The threshold of probable cause is required when police seek to further their investigatory efforts beyond the initial encounter. 

With few exceptions, law enforcement must have probable cause in order to:

• Search someone’s vehicle without their consent. 
• Obtain a warrant to search a person’s home or other tangible property (such as a cell phone or computer). 
• Make an arrest. 

(It’s also the criteria used by grand juries in deciding to issue an indictment.)

Probable cause is generally understood to be a reasonable basis for a prudent person’s belief that a crime has been committed (in the case of an arrest) or that evidence of a crime is present in a given place (in the case of a search). 

Probable cause does not require that an officer be 100 percent certain a crime was committed or that the suspect was clearly guilty of it. That’s ultimately up for the courts to decide. However, they do need reasonable articulable suspicion - more than a hunch - if they want to initiate an investigatory stop to determine the person’s identity and ascertain the circumstances surrounding that person’s presence or behavior. If they want to take their criminal investigation to the next level with a search or arrest, they need a stronger basis than that. They need probable cause. 

To understand how probable cause is applied in Florida criminal cases, we need to first zoom out to federal civil rights protections. It starts with the Fourth Amendment to the U.S. Constitution, which protects people from unreasonable searches and seizures by the government. The 4th Amendment is not a guarantee against all searches or seizures, but it limits those actions solely to what is considered reasonable under the law. 

(Similar protections are outlined in the Florida Constitution as well - specifically in Article 1, Section 12.) 

To determine what’s “reasonable,” courts are tasked with weighing legitimate government interests, such as public safety, with individuals’ Fourth Amendment protections against government intrusion. Much of it often comes down to the location of the search and seizure. In general, you’ll have broader privacy protections in your home versus driving on a public street or in a school.

The standard for what constitutes adequate probable cause to conduct a search is somewhat subjective. There’s no clear, bright line rule - which is why there have been so many court challenges about it. It is generally understood to be a totality of facts and circumstances sufficient to lead a reasonably prudent person to believe a crime has been committed or may be committed. 

Why does probable cause matter so much to Fort Lauderdale criminal defense lawyers? Because if legal analysis later reveals that police did NOT have probable cause, then any evidence found in the course of a subsequent search is tossed out the window. It cannot be used against the defendant. This includes physical evidence, video, confessions, etc. It doesn’t matter how strong that evidence is. If it was gleaned in a search lacking probable cause, it can’t be used because it would be a violation of one’s Fourth Amendment rights. This legal principle is referred to as the “fruit of the poisonous tree” doctrine. 

The most notable exception is exigent circumstances. These are emergency situations wherein swift action is required to prevent imminent danger or destruction. In those situations, as noted in the 1992 Florida Supreme Court ruling in Wike v. State, police are going to be expected to consider:

• The gravity or violent nature of the offense.
• The reasonable belief a person/suspect may be armed.
• Strong reason to believe the suspect is in the premises being entered. 
• A likelihood that a delay (by waiting to obtain a warrant) will lead to escape of a suspect, destruction of essential evidence, or threaten public safety. 

Even then, it’s expected that the individual arrested will be promptly brought before a court to determine if probable cause exists to continue detention. 

Another possible exception (one that we often must underscore with our criminal defense clients) is consent. If you CONSENT to a search, then you cannot later argue that the police violated your rights against an unreasonable search. This is why it’s so important to clearly assert that you do NOT CONSENT to any searches if asked by the police. It may not stop the search and it may not prevent arrest, but it will give your criminal defense lawyer possible grounds to challenge that evidence later.

It’s worth noting that if you give consent and later withdraw it, you may still be able to have the evidence suppressed. For instance, in the 2000 case of Jacobs v. State, decided by Florida’s 2nd District Court of Appeals, a suspect gave an officer consent to search his shirt pocket. However, he withdrew consent when the officer found nothing in that pocket. The officer then conducted a second search based on a partially-revealed cellophane wrapper in the defendant’s other pocket. That wrapper ultimately contained crack cocaine. However, the court tossed that evidence because the officer did not have consent, this was not a “pat down” or “stop-and-frisk,” and the cellophane wrapper was not indicative of a weapon. Thus, the officer lacked probable cause. 

That said, from a defense lawyer’s standpoint, it’s always better not to offer up consent to searches at all in the first place. 

Note: Probable cause is not required to conduct a stop-and-frisk search, pursuant to F.S. 901.151. Reasonable suspicion is. This is a lower proof standard allowing police to conduct a brief pat-down for weapons. You can - and should - still be clear that you don’t consent. However, that doesn’t mean it won’t happen, and physically resisting can be the basis for additional charges. The benefit of voicing a verbal lack of consent is that your attorney might later successfully challenge the officer’s basis for reasonable suspicion or probable cause, potentially leading to suppression of any evidence obtained in that search.

As Fort Lauderdale criminal defense lawyers, we know there is no one-size-fits-all with respect to probable cause. It remains something of a flexible concept because police - and ultimately courts - must consider “the totality of the circumstances” to interpret whether their belief of a crime and suspicion of the suspect’s guilt is reasonable. 

The U.S. Supreme Court has attempted multiple times to clarify the meaning of probable cause, but it’s still a bit imprecise and fluid. Much depends on context, and courts have been known to accept a broader view of what constitutes probable cause in cases involving more serious crimes. 

In the 1983 ruling in Illinois v. Gates, the U.S. Supreme Court held that probable cause should be viewed as a practical, non-technical standard that is going to consider both the practical and factual elements of everyday life engaged in by reasonable, prudent people. 

Some of the ways police have successfully proven probable cause in Florida criminal cases:

• Presenting factual evidence that a crime has occurred. Video footage is a good example. Hospital records. Calls to 911. Witness statements. 
• Presenting patterns of suspicious behavior. This is often used in stakeout or long-term investigation cases. 
• Presenting their own expertise. For example, an officer who works in a gang unit might study and be closely familiar with certain hand signals or slang or colors. They may be able to present context that, when coupled with the evidence, creates a stronger case for probable cause. 
• Presenting circumstantial evidence tending to show that a crime already occurred. A broken window could indicate a burglary, a smashed car mirror could indicate a hit-and-run, etc. 

In general, anonymous tips or information from confidential informants aren’t sufficient on their own to form probable cause. Police need more corroborating evidence to initiate a search, secure a search warrant, or make an arrest. 

If you have been arrested and are in need of an experienced Fort Lauderdale criminal defense lawyer, we can help.

Schedule a free initial consultation with The Ansara Law Firm by calling (954) 761-4011.