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What Is Probable Cause?

What Is Probable Cause?

Most of us have heard the term “probable cause.” But what is it? When does it apply? Who makes the determination? These are all questions we hear frequently from our clients. In this blog, we look to provide a brief overview of probable cause in a criminal case, and when it applies.

Under the U.S. Constitution, as well as the Indiana Constitution, there is a provision that states, “no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”1 In a nutshell, this simply means that, absent special circumstances, you cannot be arrested or searched by police officers without first having probable cause to do the same.

You are probably wondering, but what constitutes probable cause, and who makes that determination? It has long been held that the constitutional standard for determining probable cause requires such determination be made by a neutral and detached magistrate who makes his or her determination on the basis of an affidavit apprising him or her of the underlying facts and circumstances tending to show that there is probable cause.2 A magistrate is said to be “neutral and detached” if at the time of the issuing of a warrant he or she has no personal interest in the case other than that of performing his or her judicial duty.

In determining whether probable cause was properly established in order to issue a warrant, a reviewing court looks to whether there was a “substantial basis” for concluding that probable cause existed. A “substantial basis” requires the reviewing court to focus on the reasonable inferences drawn from the totality of the evidence presented to support the determination of the probable cause.3 What is important to remember is that there must be probable cause established before a warrant can be issued, again, absent special circumstances. For example, an arrest warrant issued without any hearing or determination of probable cause is an illegally issued warrant and null and void. Therefore, the arrestee would be entitled to discharge from custody on the said warrant and/or the evidence suppressed.

The concept of probable cause is somewhat vague. It is an extremely fact-sensitive analysis, and there are many rules and exceptions that apply. Going through a criminal trial is a hard process. However, remember that you have rights and you have options. If you find yourself in criminal trouble, skilled defense counsel is crucial to protecting your rights. This blog is written by attorneys at Ciyou & Dixon, P.C. who handle the full spectrum of criminal cases throughout Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.

  1. U.S. Const. 4th Amend.; Ind. Const. article I, section 11.
  2. Shotts v. State, 925 N.E.2d 719 (Ind. 2010).
  3. Id.



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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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