Breaking Down “Probable Cause”

Both the Maine Constitution (Article I, section 5) and the United States Constitution (Fourth Amendment) protects you from unreasonable searches and seizures by the government of your person, property, house, papers, and effects. This means that law enforcement officers must have probable cause before they can search you, your home, or your belongings, or arrest you (seize your person).  In Maine, probable cause generally exists when there is enough information for a reasonably cautious person to believe a crime is being or was committed.

A determination of whether probable cause exists usually appears in one of two circumstances: (1) the probable cause necessary for a search warrant; or (2) the probable cause necessary for a warrantless search or arrest.

Probable Cause for a Search Warrant

Probable cause for a search warrant exists when there is a good probability that a search will uncover evidence of a crime. The law enforcement officer attempting to obtain the search warrant must prepare an affidavit swearing to all the facts known to him or her that provide probable cause for the search warrant. The judge will review the application for the search warrant and the affidavit to determine if sufficient probable cause exists. If there is enough probable cause in the affidavit, the judge will issue the search warrant. If the judge decides there is not enough probable cause, the judge will deny the application for the search warrant.

Probable Cause for a Warrantless Search or Arrest

Without a search warrant, an officer may still conduct a search if the officer believes there is sufficient probable cause to conduct a search.  There are also certain limited exceptions to the warrant requirement for searches, but each still requires that probable cause be present. If the officer is wrong and sufficient probable cause did not exist at the time of the search, the evidence obtained as a result of that search may not be admissible in a future court proceeding.

With respect to arrests, a law enforcement officer may make an arrest without a warrant if that officer has sufficient knowledge of probable cause for the arrest.  A law enforcement officer may not, however, use information that he or she was not aware of at the time of the arrest to support that finding of probable cause.

Kelsey C. Doane, Attorney at Law, Rudman Winchell

Kelsey C. Olesen, Esq.
Rudman Winchell
207-947-4501