Do the clothes make the man? Implications of a witness' status in the determination of probable cause.

• Author: Ward, Jessica
• Position: Police determination of probable cause based on witness credibility

A couple walks up to a convenience store. The man waits in front of the store while his female companion goes inside to purchase a soda. The store's security guard follows the woman to the back of the store, verbally harasses her and makes suggestive gestures. When her male companion notices the trouble, he enters the store and tells her to put down the soda and leave the store. At that point, an altercation ensues between the security guard and the male. Both men are bloodied. The male companion eventually breaks free of the guard and runs out of the store. He calls 911 and reports that he has just been assaulted at the convenience store and that he needs the police and an ambulance. He then goes back to the store and waits on the sidewalk for the police to arrive.

Presently, an officer arrives on the scene and approaches the bloody customer who explains that he called 911. The officer tells him to stand against the wall and stay still. The customer tells the officer that he wants to press charges against the store's guard and that the police should arrest him. However, the officer repeatedly tells the customer to be quiet. The police officer does not inquire or listen to the customer give his account of what happened. Instead, the officer listens to the security guard's account. The guard says that the male customer was trying to steal a soda. The guard goes on to say that when he apprehended the alleged criminal, the customer struck him. The guard claims that he reacted in self-defense by hitting the customer. The policeman takes the guard at his word and arrests the customer.

INTRODUCTION

Does the policeman have probable cause to arrest the customer? Should the security guard's status as an authority figure be enough to allow his statement to furnish probable cause to arrest? The police must make credibility determinations on the spot. They do not have the benefit of 20/20 hindsight. Rather, they must evaluate the situation they are confronted with and determine whether the witness' statements supply the requisite probable cause.

As police enter a crime scene, they are often confronted with a scenario like the one above. Typically, any number of witnesses are willing to give their account of what happened. These witnesses could be the victim, a random stranger, an authority figure, or someone with a hidden agenda. Should the status of the witness be dispositive of his credibility in the eyes of the officer making a probable cause determination?

This Note examines police determination of probable cause based on witness credibility. Part I sets out the probable cause standard and details the relevant probable cause case law and the policy considerations behind the Fourth Amendment. Part II examines different types of witnesses the police encounter and analyzes whether the status of the witness implies more or less credibility. This Part also describes various eyewitnesses, including ordinary citizens, putative victims, store guards, and police officers to demonstrate the possible weaknesses of affording undue weight to a particular witness based solely on status. Part III evaluates the factors that officers apply in their determination of probable cause. This Part argues for a flexible standard rather than a rigid rule regarding the determination of witness credibility. Finally, this Note concludes that the status of the witness should not be determinative, but rather should be just one of the factors the police take into account when deciding whether probable cause exists.

1. DEFINING PROBABLE CAUSE

   1. What is Probable Cause?

      The Fourth Amendment to the United States Constitution governs all searches and seizures conducted by government agents. (1) The amendment has a dual purpose: first, to prohibit unreasonable searches and seizures; second, to require probable cause for the issuance of a warrant. (2) The Fourth Amendment does not literally require probable cause to accomplish a warrantless arrest. However, in general, the United States Supreme Court has interpreted the right to be free from "unreasonable searches and seizures" as requiring police to find probable cause prior to making an arrest. (3)

      The Court has set out flexible standards for determining whether there is probable cause for an arrest. (4) As the language of the Fourth Amendment is general, courts have had to interpret the language to construct a probable cause standard. The courts have generally interpreted probable cause to be a malleable standard. (5) Probable cause exists when "at the moment the arrest was made the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." (6) In Illinois v. Gates, (7) the Court held that probable cause does not involve hard certainties, but rather probabilities. (8) The Court termed the probable cause standard a fluid concept that turns on the "totality of the circumstances." (9) In Ornelas v. United States, (10) the Court continued to rely on the facts of the situation in determining whether probable cause exists. (11)

      As the probable cause standard is flexible, there are no right or wrong standards in its interpretation. (12) Police are not constitutionally required "to follow the best recommended practices." (13) What is "wise" and what is "compulsory" are two entirely different concepts. (14) "To collapse those two concepts is to put the judicial branch in general superintendence of the daily operation of government, which neither the [F]ourth [A]mendment nor any other part of the Constitution contemplates." (15)

      The Court has held that when determining probable cause, police officers are to rely on their own experience and knowledge. (16) As one part of the probable cause determination, police officers must weigh the evidence before them. (17) In Wilson v. Russo, (18) Chief Judge Becket engaged in what he termed the "routine probable cause analysis," which involved weighing the inculpatory evidence against any exculpatory evidence in the hands of the officer. (19) Law enforcement officials may not ignore potentially exculpatory evidence when deciding whether to arrest someone. (20)

   2. Policy Behind the Fourth Amendment

      The Supreme Court's elastic conception of the rule of probable cause allows for a proper equilibrium between peacekeeping and the right of people to be free from unreasonable searches or seizures. (21) In Gerstein v. Pugh, (22) the Court explained that the probable cause standard does not demand scientific exactness, but seeks a proper balance between law enforcement objectives and citizens' rights. (23) On one hand, the standard seeks to safeguard the people from unreasonable intrusions on their privacy and unsubstantiated criminal charges. (24) On the other hand, the rule gives police enough leeway to perform their law enforcement duties. (25) As defined by the courts, the probable cause standard achieves an appropriate flexibility to account for the ambiguous situations police officers often encounter. (26) Courts must give law enforcement enough maneuverability to allow for some mistakes on their part; however, these mistakes must remain within the realm of reasonableness. (27) As a standard of probabilities and reasonableness, probable cause serves the function of keeping the opposing interests of the police and the people in check. (28)

   3. Duty to Investigate

      The extent of an officer's duty to investigate is incorporated into the probable cause analysis. (29) Courts generally have not imposed a stringent duty to investigate upon the police; (30) rather, they frequently describe the duty to investigate as a duty to be reasonable. (31) The duty to investigate depends on the circumstances of the particular case. (32) In some situations, courts do impose the duty on the police. (33) The duty to investigate is defined by the strength or weakness of probable cause evidence. (34) The existence of a "strong basis" for probable cause will eliminate the need for further investigation. (35) However, weak probable cause evidence necessitates further investigation. (36)

      Walker v. Spiller, (37) an action for false arrest, exemplifies a court's finding of weak probable cause evidence signaling a further duty to investigate. (38) On a motion for reconsideration, Judge Brody vacated her grant of summary judgment to defendant officer Spiller and ruled that the issue of the officer's failure to investigate could be raised at trial. (39) The court held that the police officer's failure to investigate plaintiff Walker's alibi could constitute a Fourth Amendment violation because the probable cause evidence was weak. (40) The police officer arrested Walker based on three pieces of evidence. (41) First, Walker was connected to a series of other robberies, based on another person's confession, which was later found to be untrue. (42) Second, the police relied upon the officer's conclusion that Walker was a participant in a string of robberies. (43) However, Judge Brody was unclear whether this pattern was created by evidence before the court or simply by the detective's own intuition. (44) In the latter case, the evidence would not be sufficient to support probable cause. (45) Third, the police used a photo identification of the plaintiff. (46) The court deemed the identification to be "problematic," as its reliability could not be determined from the evidence before the court. (47) Walker's sworn allegations that the police physically abused him, verbally harassed him, and coerced his confession at the time of his arrest further weakened the probable cause evidence brought against him. (48) Walker argued that the police should have investigated his alibi on the basis of this shaky probable cause evidence. (49) The court determined that this would be a proper inquiry at trial. (50)

      Courts typically frown upon...