Have you ever wondered when a police officer is authorized to search you? Or if he has enough evidence against you to make an arrest? This is where the familiar terms “reasonable suspicion” and “probable cause” come in to play. These concepts are fundamental in determining if and when a person can be detained for questioning, searched and arrested (seized).

The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures. But what exactly does ‘unreasonable’ mean? Rather than following a neat, concise set of legal rules, reasonable suspicion and probable cause are based on the circumstantial interpretation made by the police officer(s). However, the officer’s interpretation must align with the Constitution, which is not always the case. In this week’s post I break down these two terms and provide examples through hypothetical DUI stops.

Reasonable suspicion for an investigative stop – An officer can briefly detain a person if he has a reasonable belief that a crime has been, is being, or will be committed. The officer may also perform a limited search (frisk) of the outside of the person’s clothing if he has a reasonable belief that the person is armed. The officer’s belief must be based on facts or circumstances. In other words, an officer cannot simply “guess” or “feel” as though a crime has been, is being, or will be committed.

·What constitutes as reasonable suspicion of DUI? Some of the primary examples are the smell of alcohol on your breath, slurred speech, bloodshot, glassy or watery eyes, erratic driving behavior, difficulty providing your license and registration, and the inability to maintain balance.

Probable cause for arrest – The logical belief, based on articulable facts and circumstances, that would lead a reasonable person (officer) to believe that a crime has been, is being, or will be committed. There is concrete evidence, rather than a reasonable belief that evidence exists. Probable cause must exist in order for an officer to make a lawful arrest or to obtain a search warrant.

·What constitutes as probable cause for a DUI arrest? Some of the primary examples are the occurrence of an injury or accident, the result of the preliminary breath test (PBT), and admission to drinking prior to driving – even if you say you’ve only had one drink!

Probable cause to search – Requires the officer to have a sufficient belief, based on facts and circumstances, that related evidence or contraband will be located in a specific area. The term “seizure” pertains to both evidence and the person in question. As with probable cause for an arrest, the officer must be able to articulate the facts behind the probable cause for a search.

·What constitutes as probable cause for a search in a DUI arrest? Some of the primary examples include the ones listed for reasonable suspicion (slurred speech, glassy eyes, etc.). The sight or smell of illegal items in plain view justifies a search, and once you’ve been arrested, you and your car may be lawfully searched.

Reasonable suspicion is the articulable belief that crime is occurring or has occurred, rather than a hunch or feeling. For example, an officer has reasonable suspicion that a driver is under the influence due to the smell of alcohol emanating from his breath combined with the driver’s slurred speech. Probable cause, however, means an officer has concrete evidence of a crime or he is able to articulate that a search will reveal evidence or contraband. For example, the driver who smells of alcohol and has slurred speech also has a (clearly visible) open beer can in his cup holder and a PBT result of .10%.

In sum, an officer must have reasonable suspicion (i.e. he is able to articulate why is he suspicious) that a crime is or has been committed in order to lawfully detain someone. If he does in fact have reasonable suspicion and wants to make the arrest, he must demonstrate a concrete, objective reason or reasons (i.e. slurred speech combined with erratic driving behavior and the PBT result) that there is a fair probability that criminal activity is present.
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About the Author

Suzi Wolf, Paralegal
Ms. Wolf assists in the research and analysis involved in each case handled by Robinson Law, PLLC, and she is responsible for all “behind the scenes” work. Her primary duties range from accounting and drafting contracts to filing motions and assisting in trial preparations. Ms. Wolf is thrilled to take on her most recent project as the firm’s blogger and hopes to provide informative, enjoyable posts regarding common topics in criminal law.
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If you need legal advice regarding a traffic or criminal matter, please contact Robinson Law, PLLC directly at (703) 542-4008 or MAR@VirginiaDefenseAttorney.com. This blog is not intended to serve as legal advice.
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