“Probable Cause” Probably Caused Your Arrest, NOT Stop

The term “Probable Cause” has been an elusive term ever since the days of Terry. At that time, the US Supreme Court stated that a person was the subject of an illegal search and seizure (stop) unless the arresting authority had justifiable articuable facts to conclude that a person was engaged in or about to engage in an illegal activity. Universally, this definition was characterized as “probable cause.”

But, this elusive term has been the subject of thousands of interpretations based upon the totality of the evidence presented the officer at the time. When applied to Driving Under the Influence (DUI), probable cause does not come into play in the initial encounter. There are three types of police encounters: an arrest, an investigatory stop or detention, and a consensual encounter. Swift v. State, 393 Md. 139, 150, 899 A.2d 867, 873 (2006). An arrest requires probable cause; an investigatory detention, which is a seizure of limited duration, does not require probable cause but instead requires reasonable articulable suspicion; and a consensual encounter need not be supported by any level of suspicion. Id. Given the underlying purpose and plain language of § 16-205.1 requiring a detention and not an arrest, the use of the word “detained,” combined with the word “suspicion,” means reasonable articulable suspicion and not probable cause.

The police officer on the road need only have suspicion of intoxication to justify further investigation and further detention under § 16-205.1.

The determination of reasonable grounds for a belief can involve either an objective or subjective analysis, depending on the circumstances. Volodarsky, 397 Md. 291, 916 A.2d 991, at 306, 916 A.2d at 1000. When a police officer is called upon to make a preliminary determination based on incomplete and often non-testimonial hearsay evidence as to whether probable cause or reasonable grounds or reasonable suspicion exists to justify some further step in an investigation, the officer may take the evidence at face value and simply decide whether, if true, it leads to a reasonable belief that an offense was committed. An “objective analysis is most often used in situations in which only a preliminary determination need be made, based on incomplete and often non-testimonial hearsay evidence. The result of such a determination is not an ultimate finding of fact, but simply a basis for taking a further procedural step- an arrest, a detention, a search, or, as in this case, a request to take a test to determine alcohol concentration. When a court is called upon to make a judicial finding, a different analysis may be required. The court often must make credibility determinations and weigh the value of the evidence. Id. at 307, 916 A.2d at 1000-01. Because the judicial finding has preclusive effect, the court, unless required to use a higher standard, must find its conclusion supported by at least a preponderance of the evidence, for anything less would necessarily be arbitrary. Id. at 305-06, 916 A.2d at 1000.

Allow me to give an example. Joe Citizen is taking a midnight stroll down Main Street looking at the lovely Christmas decorations in each store window. Some are so elaborate that he idles at some of the store windows admiring the display’s intricacy. At the same time, Officer Jones is patrolling Mail Street and notices Joe Citizen walking down the street looking through store windows and dawdling at some. Based upon his years of experience it is Officer Jones’ opinion that criminals use this technique to case a prospective place to rob. He stops Mr. Jones to ask questions and, not being satisfied with Mr. Citizen’s answers, places him into custody.

In this example, the arrest was predicated on the officer’s past experience and perceptions not on objective facts indicating that Joe Citizen was engaged in or about to engage in some illegal act. Therefore, there was insufficient probable cause to support the arrest, but his questioning into the matter for a short duration is within his legal authority.

Now lets use a DUI example. Joe Citizen just left a party where he had a glass of wine and, on his way home, is driving slowly down the street admiring the Christmas decoration on various homes in his neighborhood. While doing so, he happens to drive onto the center line once. Officer Jones is patrolling the neighborhood and happens to see Mr. Citizen drive onto the center line. The officer’s years of experience tell him that DUI offenders tend to cross the center line, so he stops Joe Citizen’s car. As Mr. Citizens lowers his car window, Officer Jones smells a slight odor of alcohol. Based upon his preconceived perceptions, Officer Jones arrests Joe Citizen for DUI. There was insufficient articuable facts that would warrant probable cause to arrest Joe Citizen for DUI. Officer Jones’ subjective opinions and perceptions can not be the basis for probable cause. Once again, there were insufficient objective facts to warrant the arrest. This does not mean the initial encounter and actions of the Officer were unwarranted. Officer Jones, using his experience and the observed facts, could have had reasonable articulable suspicion to further investigate the situation. His seizure of limited duration could be used to investigate his suspicions. However, upon his investigation, nothing was discovered to warrant probable cause for the arrest. He should have proceeded with the investigation by including those common tests known to most citizens: Horizontal Gaze Nystagmus Test, Walk and Turn Test, and One Leg Stand Test. Poor performance in these tests could provide probable cause for an arrest.

Objective facts are the standard for probable cause, but subjective opinions or perceptions are most often used to create the initial reasonable articulabe suspicion. An officer’s arrest must be based upon sufficient articuable FACTS, not just the officer’s opinion.