militarydefenselawyers285Appendix b: guide to articulating probable cause

Overview of appendix b: guide to articulating probable cause

militarydefenselawyers284Probable cause to authorize a search exists if there is a
reasonable belief ,based on facts , that the person or evidence sought is at the place to be searched. Reasonable belief is more than mere suspicion. Witness or source should be asked three questions:

  1. What is where and when? Get the facts!
    1. Be specific: how much, size, color, etc.
    2. Is it still there (or is information stale)?
      1. If the witness saw a joint in barracks room two weeks ago, it is probably gone; the information is stale.
      2. If the witness saw a large quantity of marijuana in barracks room one day ago, probably some is still there; the information is not stale.
  2. How do you know? Which of these apply?
    1. “I saw it there.” Such personal observation is extremely reliable.
    2. “He [the suspect] told me.” Such an admission is reliable.
    3. “His [the suspect’s] roommate/wife/ friend told me.” This is hearsay. Get details and call in source if possible.
    4. “I heard it in the barracks.” Such rumor is unreliable unless there are specific corroborating and verifying details.
  3. Why should I believe you? Which of these apply?
    1. Witness is a good, honest soldier; you know him from personal knowledge or by reputation or opinion of chain of command.
    2. Witness has given reliable information before; he has a good track record (CID may have records).
    3. Witness has no reason to lie.
    4. Witness has truthful demeanor.
    5. Witness made statement under oath. (“Do you swear or affirm that any information you give is true to the best of your knowledge, so help you God?”)
    6. Other information corroborates or verifies details.
    7. Witness made admission against own interests.
    8. The determination that probable cause exists must be based on facts, not only on the conclusion of others.
    9. The determination should be a common sense appraisal of the totality of all the facts and circumstances presented.

What is where and when? Get the facts!

Witness has truthful demeanor