Search and Seizure - Arrest – Probable Cause

Devenpeck v. Alford, 543 U.S. 146 (2004)

If the police have probable cause to arrest a defendant based on certain facts known to the officer, the arrest is valid, even if the police tell the defendant that he is being charged with some other (unrelated) offense. In this case, the police arrested the defendant and told him he was being charged with violating the state Privacy Act (the defendant was recording his conversation with the police officer). Actually, the law dictated that the defendant had not committed a violation of the Privacy Act. Nevertheless, at the time of the arrest, the police were also aware that there was probable cause to arrest the defendant for impersonating a police officer and obstruction of a law enforcement officer. The Supreme Court holds that the existence of probable cause to arrest the defendant for an offense – even an offense that was not the offense that actually prompted the arrest – supports the arrest. The Court reached this conclusion, stressing that the Court has repeatedly held that the motivation of a police officer is not a relevant inquiry in assessing probable cause: rather the objective facts known to the police officer is the focus of the probable cause determination. The Court’s decision was unanimous.

Maryland v. Pringle, 540 U.S. 366 (2004)

The police stopped a vehicle for speeding. The driver consented to a search of the car. Cash and drugs were found. Two other occupants of the car were arrested. The Supreme Court held that the evidence found during the consensual search was sufficient to justify the arrest of the two passengers. Therefore, the passenger’s subsequent confession was admissible.

United States v. Navedo, 694 F.3d 463 (3rd Cir. 2012)

The police saw the defendant on the porch of his apartment building. Another man came up to the defendant, retrieved a gun from a backpack and showed it to the defendant. The police then approached and both men fled. The police arrested the defendant. The Third Circuit held that there was no probable cause to support the arrest based on the defendant’s flight. Even considering Illinois v. Wardlow, 528 U.S. 119 (2000), the defendant’s conduct was not sufficiently suspicious to support an arrest. Even if the police were permitted to briefly detain the suspect and investigate legitimate suspicions – some of which may arise by virtue of the defendant’s flight, coupled with other circumstances – flight is not a sufficient basis to make an arrest.

United States v. Struckman, 603 F.3d 731 (9th Cir. 2010)

A neighbor called the police and reported that a white man wearing a black leather jacket had just climbed over a fence in her neighor’s yard and she could not see who it was, but the neighbors were not home. The police went to the location, looked over the fence and promptly detained (with guns drawn) the defendant, who fit the description and was walking around in the backyard. He was searched and a gun was found. They then determined that he lived at that house; and also learned that he was a convicted felon who could not possess a firearm. The Ninth Circuit held (1) there was no probable cause to arrest the defendant – despite the report from the neighbor, the police should have asked the defendant his name and obtained information about where he lived before arresting him; (2) there were no exigent circumstances to support the arrest and search; (3) the backyard was part of the cartilage of the house.

United States v. Valentine, 539 F.3d 88 (2d Cir. 2008)

The police made a control delivery of boxes (which they knew contained drugs, hidden in some furniture), to an apartment in which the defendant was apparently residing. The boxes were not addressed to the defendant, however. It was apparent that he knew the addressee, but there was no information linking him to the drugs. Based on the information known to the agents, there was no probable cause to arrest the defendant.

United States v. Collins, 427 F.3d 688 (9th Cir. 2005)

A target of a stolen check ring agreed to meet undercover agents and provide more stolen checks to them. The target arrived in his car and parked in a parking lot. Two other cars simultaneously pulled up and parked on either side of the target’s car. Shortly thereafter, the defendant was seen talking to the driver of one of the other cars. It was not clear from where he came, though he may have come from the other car. This information was not sufficient to support an arrest of the defendant.

United States v. Myers, 308 F.3d 251 (3rd Cir. 2002)

The police were called to an apartment regarding a disturbance. When the police arrived, a young girl was on the front step and she told the officer that her mother and her boyfriend were inside fighting and the boyfriend had a gun. The officer entered the apartment and after finding the defendant behind a door arrested him. The officer observed the defendant throw a bag on the ground. The defendant was handcuffed and the woman was brought downstairs. The officer then went back upstairs and opened the bag, finding a gun. The Third Circuit held that there was no probable cause to arrest the defendant, and even if there had been probable cause, the search of the bag was not incident to the arrest and was therefore unlawful. Regarding probable cause, at most there was some indication that there had been a simple assault, but that had not occurred in the officer’s presence and thus he could not arrest the defendant for that offense. Regarding the search, with the defendant handcuffed and immobilized, there was no need to search the bag.

United States v. Kithcart, 134 F.3d 529 (3rd Cir. 1998)

The police received a report of several armed robberies. One of the robberies involved two black males in a Z-28, or a Camaro. About ten minutes later, an officer observed a black Nissan with one black male driving. She pulled behind the car and when the car ran a red light, she stopped the vehicle and then realized that there were two occupants. The occupants were ordered to exit the car and were searched. A gun was found in the defendant's possession and he was charged with possession of a weapon by a convicted felon. Searching the occupants could not be supported on the basis of a search incident to arrest, because there was no probable cause to support an arrest. In short, the fact that two black men were driving a sports car in the general vicinity of a robbery did not support the arrest of every black sports car with two black occupants. Upon remand, the trial court again denied the motion to suppress and in an unreported decision, that decision was affirmed. 34 Fed. Appx. 872 (3rd Cir. 2002).

United States v. Ho, 94 F.3d 932 (5th Cir. 1996)

The defendant was approached at an airport because of his suspicious appearance and itinerary. He initially gave consent to a search of his portfolio. As the officer was looking through the portfolio, he discovered a blank white plastic card. At that point, the defendant abruptly withdrew his consent by grabbing the portfolio back. The officer grabbed the white card and saw a magnetic strip on the back, which indicated that it was a fraudulent card. However, the discovery of the magnetic strip on the back only occurred after the defendant had revoked his consent and thus could not be considered. Prior to noticing the magnetic strip, moreover, probable cause did not exist to arrest the defendant and continue the search on a search incident to arrest theory. The district court erred in denying the motion to suppress.

United States v. Jackson, 818 F.2d 345 (5th Cir. 1987)

The defendant was arrested pursuant to an arrest warrant. However, the warrant failed to establish the reliability, veracity and basis of knowledge of the informant who provided the incriminating information.

United States v. Levy, 990 F.2d 971 (7th Cir. 1993)

A local ordinance outlawed face-to-face solicitations. In this case, a telemarketer called a billiards parlor operator and asked for a twenty-five dollar donation for the Police Federation. The billiards operator agreed. The telemarketer sent a runner to pick up the donation and the police met him there, arrested him and found a gun in his possession. He was charged with a 922(g) violation (possession of a firearm by a convicted felon). Because the defendant had not violated the ordinance, however, there was no probable cause to arrest him and the search incident was improper. The evidence should have been suppressed.

United States v. Ingrao, 897 F.2d 860 (7th Cir. 1990)

The Seventh Circuit concludes that there was not probable cause to arrest the defendant. Most of the evidence upon which the trial court relied related to another individual. The police had maintained surveillance on the other individual’s house. The defendant was seen exiting the house with a gym bag. Never, however, were the defendant and the other individual seen together. In order to find probable cause based on association with persons engaging in criminal activity, some additional circumstances from which it is reasonable to infer participation in the criminal enterprise must be shown. The mere fact that the defendant was carrying a bag does not add significantly to any already existing suspicion by the police. Furthermore, the defendant’s “furtive gestures” were not sufficient additional information to justify the arrest of the defendant.

McIntosh v. Arkansas Republican Party, 825 F.2d 184 (8th Cir. 1987)

The defendant stated his intention to disrupt a meeting of the Arkansas Republican Party. The party contacted the police who arrested the defendant outside the meeting room. This constitutes unlawful arrest, and the Arkansas Republican Party was held liable for a violation of the defendant’s civil rights. The Court holds that an individual may not be arrested for a future crime.

United States v. Delgadillo-Velasquez, 856 F.2d 1292 (9th Cir. 1988)

An uncorroborated tip from an untested informant does not give agents probable cause to believe that a fugitive lived at the defendant’s apartment or that the defendant was the fugitive. Further, evidence obtained after the arrest could not be considered in assessing probable cause at the time of the seizure.

United States v. Dimick, 990 F.2d 1164 (10th Cir. 1993)

The defendant was travelling from Los Angeles to St. Louis. He paid for his one-way ticket in cash, remained in his compartment the entire trip; tipped the train conductors with $20 bills; ordered his meals delivered to his compartment; lied about his name when questioned and claimed to have no luggage. Based on this information, the DEA entered his compartment and found a suitcase, which was then subjected to a dog sniff. The dog alerted and narcotics were found in the suitcase. The entry into the train compartment required probable cause which was lacking at that time. Absent probable cause, even with reasonable suspicion, which did exist, the officers could not enter the compartment. This opinion may not have survived a later decision in the Tenth Circuit, United States v. Little, 18 F.3d 1499 (10th Cir. 1994).

United States v. Anderson, 981 F.2d 1560 (10th Cir. 1992)

While the defendant’s actions and associations with others gave rise to an articulable suspicion, there was not probable cause justifying his arrest. His suspicious activities included being present at a location where marijuana was located, parking his pickup truck near a U-Haul which the police suspected contained marijuana. Later, he drove off in his pickup, driving cautiously.

Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996)

In this civil rights case, the court held that the police lacked probable cause to arrest the plaintiff. The arrest was based on an informant’s tip which was not corroborated, there was no showing of the informant’s basis of knowledge, and no showing of the informant’s prior history in providing information to the police in order to support his credibility.

United States v. Gonzalez, 969 F.2d 999 (11th Cir. 1992)

The court remanded this case back to the district court to determine if the police officer’s misidentification of a person was objectively reasonable and thus, whether there was probable cause to arrest. The fact that the detective made an “honest mistake” is not determinative; the question is whether this honest mistake was reasonable. The court declined to rule whether the arrest, which was based on an anonymous tip, coupled with the corroboration of innocent activity, was based on probable cause, but found that, at best, it presented a close question, depending on the objective reasonableness of the officer’s mistaken identity of one of the participants in the innocent activity.

United States v. Gibson, 19 F.3d 1449 (D.C.Cir. 1994)

Defendant purchased a one-way ticket on an Amtrak train, with cash, several minutes prior to departure time. When he arrived at Union Station, he was approached by the police. He claimed to have been at a funeral, but his clothing did not seem appropriate. He had no identification. When the police called the telephone number listed on the reservation, there was no answer. The Court of Appeals holds that this does not amount to probable cause to arrest and the arrest and ensuing search were illegal. Even after having his suspicions aroused, the fact that the police frisked the defendant and felt a hard flat object in his pants did not increase the knowledge of the police to the level of probable cause. “The Fourth Amendment stands in the way of the police arresting people simply because they appear suspicious and may be hiding something.”