Probable Cause

• Jurisdiction: Maryland

VI. Probable cause

A. Probable cause is factual and practical

Probable cause is a practical, common sense, non-technical concept addressing the factual and practical considerations of everyday life on which reasonable and prudent people act. Maryland v. Pringle, 540 U.S. 366, 370 (2003); United States v. Ventresca, 380 U.S. 102, 109 (1965) (probable cause is based on a common sense and not a hyper-technical approach). In Doering v. State, 313 Md. 384 (1988), the Court of Appeals stated that probable cause requires less evidence than needed for a conviction and more evidence than needed to arouse a reasonable suspicion. Id. at 403 (citing Sterling v. State, 248 Md. 240, 245 (1967)); Brinegar v. United States, 338 U.S. 160, 176-77 (1949).

In Illinois v. Gates, 462 U.S. 213, 238 (1983), the Supreme Court stated that probable cause requires "a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238; Johnson v. State, 142 Md. App. 172, 188 (2002). A probable cause analysis views the facts based on the experience and special knowledge of police.

In Wood v. State, 185 Md. 280 (1945), the Court of Appeals stated that, in making a probable cause determination, "the experience and special knowledge of police officers who are applicants are among the facts that may be considered." Id. at 286 (citing Steele v. United States, 267 U.S. 498, 504, 505 (1925); Foreman v. State, 182 Md. 415, 420 (1943); Allen v. State, 178 Md. 269, 276 (1940)). In Shoemaker v. State, 52 Md. App. 463, 468 (1982), the Court of Special Appeals recognized that police, based on their experience, have a special competence to interpret what might otherwise be ambiguous.

In measuring probable cause, judges (both a judge issuing a warrant and a judge reviewing a warrant) may give significance to police expert interpretation if police established their special knowledge in the warrant application. Id. at 468; see Behrel v. State, 151 Md. App. 64, 91, cert. denied, 376 Md. 546 (2003) (expertise in child abuse sex offense cases); Denikos v. State, 9 Md. App. 603, 609 (1970) (police expertise in drug cases is important in assessing probable cause); Johnson v. State, 8 Md. App. 187, 191-92 (1969) (expertise of police in illegal lottery cases); Spriggs v. State, 226 Md. 50, 52 (1961); Le Faivre v. State, 208 Md. 52, 57 (1955); Chernock v. State, 203 Md. 147, 154 (1953).

In Williams v. State, 188 Md. App. 78, 92, cert. denied, 411 Md. 742 (2009), the Court of Special Appeals stated: "'[C]onsiderable credit can be given to the expertise of law enforcement officers in conducting investigations into illegal drug activity.'" Id. at 92 (quoting Birchead, 317 Md. at 703); accord Longshore v. State, 399 Md. 486, 534 (2007) (holding that while special knowledge of police officers is considered to establish probable cause, the officers must have observed something factual); Winters v. State, 301 Md. 214, 228 (1984); Gatewood v. State, 244 Md. 609, 616 (1966); Henderson v. State, 243 Md. 342, 344 (1966).

Probable cause "is based on the factual and practical considerations of everyday life on which reasonable people act and is assessed by considering the totality of the circumstances in a given situation." Howard v. State, 112 Md. App. 148, 160-61 (1996), cert. denied, 344 Md. 718 (1997) (citing Doering, 313 Md. at 403); Collins v. State, 322 Md. 675, 680 (1991)). "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." Brinegar, 338 U.S. at 175 (citations and quotations omitted).

Probable cause is not based on whether the officer is correct, but whether the officer had probable cause at the time of the arrest or the seizure. In Simms v. State, 4 Md. App. 160, cert. denied, 251 Md. 752 (1968), the Court of Special Appeals stated:

In assessing the validity of an arrest . . . the essential ingredient is that probable cause existed within the knowledge of the arresting officer and not that he necessarily construed that knowledge correctly. It is not the belief of the officer that determines the validity of an arrest; it is whether, in the situation in which he found himself, he had probable cause to believe that a felony had been committed and that the person arrested committed it.

Id. at 167 (internal citations and quotations omitted).

In Maryland v. Pringle, the Supreme Court stated: "The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances." 540 U.S. 366, 371 (2003) (citations omitted).

B. Probable cause is objective, decided on a case-by-case basis, under a totality of the circumstances

Probable cause is an objective evaluation, requiring facts sufficient for a reasonably prudent person to infer that (1) a crime was committed and the arrestee committed it; or (2) particularly named fruits, evidence, and/or instrumentalities of a crime are located in a particularly named place. What constitutes probable cause is the same, regardless of whether the intrusion is pursuant to a warrant or conducted without a warrant. Whiteley, 401 U.S. at 566; Waugh v. State, 275 Md. 22, 32 (1975).

In Hignut, 17 Md. App. 399, the Court of Special Appeals stated: "The definition of 'probable cause' remains a constant, of course, applying alike to searches and to arrests, with warrants or without warrants." Id. at 409 n.2; see Collins, 17 Md. App. at 381. But see Pacheco v. State, 465 Md. 311, 324-25 (2019) (distinguishing between probable cause for a vehicle search and probable cause to arrest an individual); Lewis v. State, 470 Md. 1, 22-23 (2020) (same).

In Wong Sun v. United States, 371 U.S. 471 (1963), the Supreme Court held:

Whether or not the requirements of reliability and particularity of information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent then where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed.

Id. at 479-80. Moreover, "[t]he same probable cause standards are applicable to federal and state warrants under the Fourth and Fourteenth Amendments." Collins, 17 Md. App. at 381 (citing Ker, 374 U.S. 23).

Probable cause is determined on a case-by-case basis. See, e.g., Wilson v. State, 30 Md. App. 242, 243 (1976). In Pringle, 540 U.S. at 371, the Supreme Court stated that, when determining "whether an officer had probable cause to arrest an individual, we examine events leading up the arrest and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer amount to' probable cause." (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)); see Evans v. State, 174 Md. App. 549, 561, cert. denied, 400 Md. 648 (2007).

In State v. Edwards, 266 Md. 515 (1972), the Court of Appeals stated: "The finding of 'probable cause,' while demanding more than mere suspicion, requires less evidence than would justify a conviction. . . . The evidence itself need not be legally competent in a criminal trial, and may in fact be hearsay . . ." Id. at 518-19.

Facts alleged to satisfy probable cause are evaluated under a totality of the circumstances. In Malcolm v. State, 70 Md. App. 426 (1987), aff'd in part and vacated in part, 314 Md. 221 (1988), the Court of Special Appeals stated: "[E]ach observation, standing alone, may well have been innocuous. That, of course, is beside the point. That each fragment in a mosaic, viewed alone, is meaningless by no means implies that the mosaic itself is without meaning." Id. at 435.

In Pringle, the Supreme Court criticized Maryland's highest court for considering facts in isolation:

The Court of Appeals of Maryland dismissed the $763 seized from the glove compartment as a factor in the probable-cause determination, stating that the "money, without more, is innocuous." The court's consideration of the money in isolation, rather than a factor in the totality of the circumstances, is mistaken in light of our precedents. We think it abundantly clear from the facts that this case involves more than money alone.

540 U.S. at 372 n.2 (citations omitted).

C. Probable cause requires a nexus between (1) the crime; (2) the fruits, evidence, and/or instrumentalities, and (3) their location

In Agurs, 415 Md. 62, the Court of Appeals held that there was no probable cause to search the defendant's home when the warrant failed to establish a nexus between the defendant's supposed drug dealing and his home. Id. at 83. The Court stated that direct evidence of contraband in the defendant's home is not required for a search warrant because reasonable inferences that drugs would be present are permissible to establish such a nexus, but police failed to provide such information. Id. at 85. The Court explained:

Direct evidence that contraband exists in the home is not required for a search warrant; rather, probable cause may be inferred from the type of crime, the nature of the items sought, the opportunity for concealment, and reasonable inferences about where the defendant may hide the incriminating items.

. . .

[O]bservation, documentation, or suspicion of a defendant's participation in criminal activity will not necessarily suffice, by itself, to establish probable cause that inculpatory evidence will be found in the home. There must be something more that, directly or by reasonable inference, will allow a neutral magistrate to determine that the contraband may be found in the home.

. . .
[T]here is more likely to be probable cause to search a suspected drug dealer's home when the police have seen the suspect engage in a drug sale near his home, when the police have found drugs on the suspect before the search, and when the defendant has been in and out of his home near the time of the drug sale.

Id. at 81-87 (internal quotations and citations...