NCJ Number
73779
Journal
FBI Law Enforcement Bulletin Volume: 49 Issue: 11 Dated: (November 1980) Pages: 26-31
Date Published
1980
Length
6 pages
Annotation
Legal principles regarding probable cause to search and recent court cases in which inferences were accepted as constituting probable cause are reviewed.
Abstract
A basic legal principle is the firm doctrine that probable cause to arrest an individual does not ipso facto equal probable cause to search any place connected with that individual. However, probable cause can be inferred from other facts and circumstances and need not be based on direct observation; search warrants can be issued where the likelihood exists that the items to be searched for are in a particular place. Furthermore, the Supreme Court has ruled that reviewing courts are to test and interpret affidavits for search warrants in a commonsense and realistic fashion, that deference is to be paid a magistrate's determination of probable cause, and that only those facts that are disclosed to the magistrate at the time of application for the warrant may be considered in the assessment of probable cause. Recent court decisions provide guidance in the use of inferences to support probable cause when direct evidence is lacking. In United States v. Lucarz, United States v. Kalama, United States v. Charest, and other cases, the courts decided that after a consideration of the type of crime and the nature of the item sought, it must appear likely that the item would have been concealed in the suspected place before a legal search could be conducted. Where the facts indicate that the evidence should be sought in more than one place, and that one place appears to be significantly more likely to contain the evidence than another, some courts have stated that the most likely place must be searched first before a warrant is issued for other searches. Where affiants have alleged in a search warrant application that their experience has taught them to seek particular items in particular places, the courts have accorded these statements weight, as in United States v. Spearman. Other circumstances which are common to most cases upholding searches based on inferences are as follows: ample probable cause exists to search the premises of the person who is believed to have committed the crime; the searches are done pursuant to warrants; and the premises are those of the suspect, not those of a third party. Footnotes are included.