Probable Cause

  1. probable causeProbable cause is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. Mil. R. Evid. 315(f). It is a “fluid concept—turning on the assessment of probabilities in particular factual contexts— not readily, or even usefully, reduced to a neat set of legal rules.”
    Illinois v. Gates , 462 U.S. 213, 232 (1982).
  2. Probable cause is evaluated under the totality of the circumstances.
    Illinois v.Gates, 462 U.S. 213 (1982). The Court rejected a lower court’s attempt to “overlay a categorical scheme” on the Gates TOC analysis, see United States v. Banks , 540 U.S. 31 (2003). See also,
    United States v. Leedy , 65 M.J. 208 (C.A.A.F. 2007) where CAAF emphasizes TOC as the key in any probable cause analysis.

    1. Probable cause will clearly be established if informant is reliable ( i.e. believable) and has a factual basis for his or her information under the two- pronged test of Aguilar v. Texas , 378 U.S. 108 (1964) and
      Spinelli v. United States , 393 U.S. 410 (1969).
    2. Probable cause may also be established even if the AguilarSpinelli test is not satisfied. Illinois v. Gates
      , 462 U.S. 213 (1982). But see United States v. Washington , 39 M.J. 1014 (A.C.M.R. 1994). No probable cause existed to search accused’s barracks room because commander who authorized search lacked information concerning informant’s basis of knowledge and reliability. The Gates TOC test was re-articulated in United States v. Bethea , 61 M.J. 184 (C.A.A.F. 2005) in which the CAAF held that there was sufficient probable cause to authorize a seizure of a hair sample to establish wrongful use of cocaine based on a prior positive urinalysis despite fact that hair sample would not necessarily indicate a prior one-time use of cocaine. Hair sample revealed that the accused had used cocaine multiple occasions.
    3. United States v. Evans , 35 M.J. 306 (C.M.A. 1992). Evidence that accused manufactured crack cocaine in his house gave probable cause to search accused’s vehicle. Devenpeck v. Alford , 543 U.S. 146 (2004), the probable cause upon which investigation and arrest are based need not be the same or even closely related to the probable cause for the ultimate criminal conviction, so long as both are legitimate.
    4. United States v. Figueroa , 35 M.J. 54 (C.M.A. 1992). Probable cause existed to search accused’s quarters where commander was informed that contraband handguns had been delivered to the accused and the most logical place for him to store them was his quarters.
    5. Maryland v. Pringle, 540 U.S. 366 (2003). A police officer suspected that one, or all three, of a group in a vehicle possessed drugs and arrested them. The Court found it reasonable for the officer to infer a common enterprise, and ruled the arrest constitutional as to Pringle, even though the officer had no individualized PC regarding Pringle.
    6. United States v. Rogers , 67 M.J. 162 (C.A.A.F. 2009). Probable cause existed to test appellant’s hair for cocaine, even though his urinalysis was negative.
    7. Probable Cause and Child Pornography                                                                                                         (1) United States v. Macomber , 67 M.J. 214 (C.A.A.F. 2009). Probable cause existed to search airman’s barracks room for child pornography under the totality of circumstances, even though there was no evidence the airman ever actually possessed child pornography, and the evidence that he registered with a child pornography website was fourteen months old.                                                                                  (2) United States v. Clayton , 68 M.J. 419 (C.A.A.F. 2010). Probable cause existed to search for child porn on computer in appellant’s quarters, based largely on appellant’s membership in a Google user group known to contain child pornography, even though there was no evidence appellant actually possessed child pornography. Strong two- judge dissent worries about a “ de minimis ” approach to Fourth Amendment requirements in child pornography cases.
  3. Staleness. Probable cause will exist only if information establishes that evidence is currently located in area to be searched. PC may evaporate with passage of time.
    1. United States v. Henley , 53 M.J. 488 (C.A.A.F. 2000). Magistrate’s unknowing use of information over five years old was not dispositive. In addition, good faith exception applied to agents executing warrant.
    2. United States v. Queen , 26 M.J. 136 (C.M.A. 1988). Probable cause existed despite delay of two to six weeks between informant’s observation of evidence of crime (firearm) in accused’s car and commander’s search authorization; accused was living on ship and had not turned in firearm to ship’s armory.
    3. United States v. Agosto , 43 M.J. 745 (A.F. Ct. Crim. App. 1995). Probable cause existed for search of accused’s dormitory room even though 3 1/2 months elapsed between offense and search. Items sought (photos) were not consumable and were of a nature to be kept indefinitely.
  4. See Appendix B for a guide to articulating probable cause.

Appendix B

Child Pornography