Ask Your
Prosecutor
a monthly newsletter presented by Eckberg Lammers
Probable Cause
November 2014 | Written by Joe Van Thomme
A discussion of probable cause may seem like Law Enforcement 101; however we are
continually facing probable cause challenges that necessitate live testimony from you, our
officers, to overcome the challenge by the defendant. In this Newsletter, we will discuss the
standards of a probable cause hearing and provide ways to avoid one.
Probable cause is the standard by which a peace officer has the grounds to obtain a
warrant, or as an exception to the warrant requirement, for making an arrest. A common
definition of probable cause is “a reasonable amount of suspicion, supported by
circumstances sufficiently strong to justify a prudent and cautious person’s belief that
certain facts are probably true.” In 1949, the Supreme Court defined probable cause as
“where the facts and circumstances within the officers’ knowledge, and of which they have
reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man
(or woman) of reasonable caution that a crime is being committed.”
When addressing a probable cause challenge, the court must determine whether, given
the facts disclosed by the record (i.e. your reports, supplements and/or notes on the
citation), it is fair and reasonable to require the defendant to stand trial. Even assuming the
correctness of the decision that probable cause existed to justify arrest, that decision does
not alone determine the proper resolution of a probable cause motion. Rather, the judge
must exercise an independent judgment that answers one critical question: based upon
the facts disclosed by the record, is it fair and reasonable to require the defendant to
stand trial?
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November 2014 Eckberg Lammers Ask Your Prosecutor Newsletter ~ Page 2
This is a prime example of when thorough investigative reports can help eliminate the
potential of a probable cause motion to dismiss. A carefully drawn and sufficiently detailed
report by the investigating officer(s) can and will, in most situations, be adequate support for
a finding of probable cause; at least where the essential truth of the facts alleged in the
complaint is not contested.
Each element of each crime charged must be alleged in the report. If every element is not
alleged and supported by facts, the count will be vulnerable to dismissal at a probable
cause hearing. Keep in mind that a probable cause statement is not only contained within a
complaint; it can also be found on the back of issued citations. This means that, if the court
receives only a citation with no officer notes or a corresponding report, it is vulnerable to
dismissal for lack of probable cause. The back of a citation need not specify every detail of
the criminal behavior; in fact it can be (and should be) short and sweet. Here are a couple
common examples:
• Theft: “Subject observed at Walmart select and conceal merchandise, pass all points of
sale, no attempt to pay, merchandise recovered, value $575”
• Careless Driving: “Subject observed driver traveling in excess of speed limit, weaving in
and out of traffic, other vehicles had to swerve to avoid collision”
• Disorderly Conduct: “Subject observed urinating in the parking lot of Wild Bills. When
confronted, subject began yelling and swearing at other guests in an aggressive manner
and refused to leave”
Detailed report writing, if just a brief, concise statement on a citation, is essential to avoid
probable cause challenges and dismissals. Be sure that you articulate every element of
each crime charged in your report and/or on your citation. This will help keep you out of
court and will help keep the case moving efficiently toward a conviction.
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November 2014 Eckberg Lammers Ask Your Prosecutor Newsletter ~ Page 3
ECKBERG LAMMERS PROSECUTOR TEAM
The prosecutors at Eckberg Lammers are available by phone, email and in person to assist officers in
reviewing the basis for a traffic stop, assessing the critical facts of a case, and preparing for in-court testimony.
Joe Van Thomme
Tom Weidner
Attorney
Attorney
651-351-2114
651-351-2119
jvanthomme@eckberglammers.com
tweidner@eckberglammers.com
Rebecca Christensen
Thomas Lehmann
Attorney
Attorney
651-351-2131
651-351-2133
rchristensen@eckberglammers.com
tlehmann@eckberglammers.com
1809 Northwestern Avenue Stillwater, MN 55082
Phone: 651-439-2878
www.eckberglammers.com