Definition of Probable Cause in North Carolina

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Probable cause a standard used at different points in a criminal process – it is the standard used to arrest, the standard used to indict, and the standard used to issue search warrants. In each of these situations, someone might be arrested, indicted (charged), or searched without probable cause being shown.

In the event that someone is charged, indicted or arrested without probable cause being shown, a person is likely to have some recourse. In a drug, DWI, or case involving physical evidence, a person might be able to have the fact that certain evidence suppressed if the arrest, charge, or search was done without a showing of probable cause. (A search can sometimes occur in exigent circumstances.)

What is the Definition of Probable Cause in North Carolina?

Probable cause is notoriously ill-defined.

One definition is: “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”

This is essentially the definition that is applied in North Carolina to govern arrests, coming out of a 1984 case State v. Zuniga 322 S.E.2d 140 (1984)

Thus, while a reviewing court must, of necessity view the action of the law enforcement officer in retrospect, our role is not to import to the officer what in our judgment, as legal technicians, might have been a prudent course of action; but rather our role is to determine whether the officer has acted as a man of reasonable caution who, in good faith and based upon practical consideration of everyday life, believed the suspect committed the crime for which he was later charged.

The court also said:

Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.

Notice that probable cause is crime-specific. In other words, probable cause isn’t generalized suspicion that something is wrong. In other words, while a person may be briefly detained as part of a Terry Stop, the detention can’t be prolonged. If the detention is prolonged, and then the person is ultimately charged for a different crime, the person’s rights were certainly violated.

Probable cause must support the crime that was later charged, although in the course of arresting someone, police may discover still other crimes have likely been committed and charge those as well.

The Zuniga probable cause standard has been echoed by the North Carolina Supreme Court in subsequent opinions, including:

  1. “Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.” in State v. Howard
  2. “Probable cause exists where `the facts and circumstances within their [the officers'] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’an offense has been or is being committed.” State v. Rodriguez
  3. “North Carolina Supreme Court noted that [W]hile a reviewing court must, of necessity view the action of the law enforcement officer in retrospect, our role is not to import to the officer what in our judgment, as legal technicians, might have been a prudent course of action; but rather our role is to determine whether the officer has acted as a man of reasonable caution…” in State v. Mills
  4. “Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” in State v. Kizer
  5. “‘When a law enforcement officer, by word or actions, indicates that an individual must remain in the officer’s presence…, the person is for all practical purposes under arrest if there is a substantial imposition of the officer’s will over the person’s liberty.’” State v. Joe, 2011

Zuniga, decided in 1984, follows the basic approach of the United States Supreme Court in Illinois v. Gates (1983) of using a non-technical, totality of the circumstances approach:

This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause[6] than 231*231 is any rigid demand that specific “tests” be satisfied by every informant’s tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a “practical, nontechnical conception.” Brinegar v. United States, 338 U. S. 160, 176 (1949). “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

In the DWI context, the North Carolina appellate courts have held that faulty driving and clues as to the consumption of alcohol are enough to justify arrest. For instance, in State v. Adkerson, the Court of Appeals decided that:

In this case, we hold there was sufficient evidence to support Trooper Robles’ belief in good faith, that defendant was guilty of driving while impaired. Before making the stop of the vehicle he noticed Adkerson weaving back and forth and once running off the highway. After he made the stop, he noticed that Adkerson’s eyes were extremely red and glassy and that he appeared to be in a daze. He stated that Adkerson “moved sort of slowly” and that “he appeared to be nervous and in [his] opinion he was not normal.” Finally, Trooper Robles testified that he detected “a moderate odor of alcohol about his breath.” As a result of Adkerson’s driving, 437*437 appearance and behavior, Trooper Robles placed him under arrest for driving while impaired. We hold that probable cause existed to justify this action.

In State v. Thomas, the Court of Appeals wrote:

In addition to the information received from Officer Ward, Officer Bigelow’s own observations of defendant, set forth fully above, provide sufficient evidence of probable cause to justify defendant’s warrantless arrest. Based on his observations of defendant—including his disorderly appearance, red glassy eyes, the strong odor of alcohol, backing up when he saw Officer Bigelow, and inability to produce either a driver’s license or registration—Officer Bigelow arrested defendant. Taken as a whole, this evidence is clearly sufficient to establish probable cause, and the trial court properly denied defendant’s motion to suppress

In State v. Tappe, the Court of Appeals wrote:

These cases, taken as a whole, demonstrate that probable cause is not a very high standard. It is a totality-of-the-circumstances standard, non-technical in nature, and generous to the observations of a cautious officer acting in good faith. Where an officer has taken his time, identified specific clues as to criminal activity, whether it be driving and impairment in a DWI or possession of drugs in a PWISD or drug trafficking case, the court will defer to the officer’s judgment, provided the officer can articulate specific facts that support the arrest.

In the past year, both as to the probable cause and reasonable suspicion standards, North Carolina appellate courts have rejected certain instances where defendants have been stopped or arrested without reasonable suspicion or probable cause, including a reasonable suspicion case where the defendant was merely weaving with no other evidence of criminal activity.

But the standard still remains favorable to law enforcement. The best approach, when stopped and questioned, is to reveal nothing. Be polite, but don’t answer questions, and insist on either being able to leave on your own, or being able to have a criminal lawyer present.