Section 9.16 Issued on Probable Cause

• Library: Criminal Practice 2012 Supp

C. (§9.16) Issued on Probable Cause

The Fourth Amendment states that “no warrants shall issue but upon probable cause . . . .” Thus, probable cause is an essential requisite for issuance of a valid search warrant. The test for determining probable cause is whether, in the totality of the circumstances, Ill. v. Gates, 462 U.S. 213, 238 (1983), there exist facts and circumstances that are sufficient to warrant a person of reasonable caution in believing that items subject to seizure are located at a particular place to be searched. Id. See, e.g.,State v. Moiser, 738 S.W.2d 549, 557 (Mo. App. E.D. 1987).

The Supreme Court has hesitated to reduce probable cause to a mathematical formula or “numerically precise degree of certainty,” Gates, 462 U.S. at 235, and there is legitimate dispute among courts and commentators regarding just how “probable” probable cause must be. See, e.g., Joshua Dressler, Understanding Criminal Procedure § 9.07 (2002). It is clear, however, that “[f]inely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [judge’s] decision,” State v. Gordon, 851 S.W.2d 607, 612 (Mo. App. S.D. 1993) (quoting Gates, 462 U.S. at 235), and that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Id. at 612 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)). As noted by both the United States Supreme Court and Missouri courts, “[i]n dealing with probable cause, . . . as the very name implies, we deal with probabilities.” State v. Hill, 854 S.W.2d 814, 817 (Mo. App. S.D. 1993) (quoting Gates, 462 U.S. at 231).

The Supreme Court of Missouri reiterated and refocused its articulation of the requirements for probable cause in State v. Hampton, 959 S.W.2d 444 (Mo. banc 1997). Relying on the United States Supreme Court’s articulation in Ornelas v. United States, 517 U.S. 690 (1996), the Court confirmed that probable cause is a “flexible” concept and stated:

Articulating precisely what . . . “probable cause” mean[s] is not possible. [It is a] commonsense non-technical conception[ ] that deal[s] with “‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” . . . . [P]robable cause to search . . . exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or...