June 27, 2016 In order to make an arrest, police are held to a standard of proof known as probable cause, the name of which describes the standard. The level of certainty is not “absolute cause,” meaning that incontrovertible proof is not needed, but at the same time, it involves a level of certainty much greater than a mere hunch. Simply put, probable cause means that a reasonable person would be led by any and all attendant circumstances to believe that the person in question committed a crime. The Fourth Amendment establishes that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While temporary detention, stop and frisk searches, and other aspects of the laws of arrest, search, and seizure are completely separate topics unto themselves, they arise out of the Fourth Amendment just as the requirement for probable cause does. Evidence gathered, statements made, and other relevant proof leading to a conviction are subject to Fourth and Fifth Amendment (the right to avoid self-incrimination) restrictions and are often hotly contested in court. Frequently Overlooked Aspects of the Fourth and Fifth Amendments Despite the attention paid by defense attorneys to the admissibility of evidence gathered after arrest or during allowable temporary detentions, the grounds for establishing probable cause to arrest in the first place are often ignored. Just as a metaphorical house cannot be built on sand, so too must an arrest be based on solid ground. If it is not, it will later crumble, but not without proper representation that demonstrates the flaws in the original arrest. Specifically, evidence gathered after an improper arrest and resulting from that arrest will be inadmissible in court if shown to be a direct result of that improper arrest. This is the basic “fruit of the forbidden tree” doctrine that prohibits the use of evidence gained in violation of Fourth or Fifth Amendment rights. Timing is Everything The circumstances that establish exactly when a subject is under arrest vs. temporarily detained vs. free to leave a comprise is yet another complex and hotly contested aspect of the laws of arrest, search, and seizure not discussed here. The factor in question here is that once it is established that a person is under arrest, there must be probable cause to support that arrest at the time the arrest is made. In other words, the ends cannot justify the means in terms of gathering evidence pursuant to an arrest already made if the arrest is made without probable cause. Reach Out to Us for Help If you or a loved one has been arrested and you believe the arrest was not supported by probable cause at the time it was made, it is not too late to invoke your Fifth Amendment or Fourth Amendment rights. Contact the criminal defense attorneys at The Nahajski Firm at (206) 621-0500 for a free and confidential initial consultation.