Contributions

The Element in the Room: Requiring Probable Cause of Every Element of a Crime

By Kim­ber­ly La Fronz1

The Fourth Amend­ment aims to strike a bal­ance between the fun­da­men­tal right to be free from unrea­son­able search­es and seizures and allow­ing law enforce­ment offi­cers to take effec­tive action to pro­tect the pub­lic inter­est.2 Yet, because the stan­dard for effect­ing war­rant­less arrests relies on a neb­u­lous “total­i­ty of the cir­cum­stances” analy­sis, exact­ly what infor­ma­tion a police offi­cer must con­sid­er before effect­ing such an arrest is unclear. While much of the prob­a­ble cause cal­cu­la­tion is set­tled law at this point4, it remains unde­cid­ed whether an offi­cer must have prob­a­ble cause for every ele­ment of a crime, includ­ing mens rea, and how much atten­tion offi­cers must pay to evi­dence tend­ing to negate that mens rea. Ulti­mate­ly, this Con­tri­bu­tion will argue that in order to effect a war­rant­less arrest a police offi­cer must have prob­a­ble cause with respect to every ele­ment of the crime in order to effect a war­rant­less arrest and must not ignore exon­er­at­ing evi­dence in their total­i­ty of the cir­cum­stances analy­sis.

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Prece­dent is clear that, in order to make a valid arrest with­out a war­rant, the arrest­ing offi­cer must ana­lyze prob­a­ble cause at least as strin­gent­ly as the war­rant process would5 since an arrest with­out a war­rant “bypass­es the safe­guards pro­vid­ed by an objec­tive pre­de­ter­mi­na­tion of prob­a­ble cause.”6 To meet this require­ment, the offi­cer is required to con­sid­er the “total­i­ty of the cir­cum­stances,” a stan­dard first insti­tut­ed by the Unit­ed States Supreme Court in Illi­nois v. Gates to deter­mine whether prob­a­ble cause exist­ed to search a house.7 The Court empha­sized that the total­i­ty of the cir­cum­stances analy­sis was meant to be a “com­mon­sense, prac­ti­cal” analy­sis.8

Yet case law is often unclear as to what infor­ma­tion must be con­sid­ered in the total­i­ty of the cir­cum­stances analy­sis and what offi­cers must have prob­a­ble cause of in order to arrest a per­son. Pri­or to Illi­nois v. Gates, the Supreme Court held that a war­rant­less arrest was uncon­sti­tu­tion­al absent “infor­ma­tion hint­ing fur­ther at the knowl­edge and intent required as ele­ments of the felony under the statute.”9 In Unit­ed States v. Di Re, the offi­cer made an arrest because he saw ille­gal gam­bling coupons in a car, but the Court not­ed that pres­ence alone did not speak to the knowl­edge and intent require­ments of the statute.10 Yet, sub­se­quent­ly in Mary­land v. Pringle, where mul­ti­ple men were found in a car with con­trolled sub­stances, the Court per­mit­ted the arrest­ing offi­cers to infer the knowl­edge mens rea for each indi­vid­ual11 While offi­cers need not have tri­al-lev­el proof of every ele­ment of the crime at the moment of arrest, the Pringle and Di Re deci­sions indi­cate that mens rea must play a part in the total­i­ty of the cir­cum­stances analy­sis in some way. The remain­ing ques­tion is whether offi­cers must have spe­cif­ic facts indi­cat­ing the req­ui­site mens rea or whether a mere infer­ence will always suf­fice.

Though Pringle seemed to sug­gest that an infer­ence is suf­fi­cient, cir­cuit courts have split on the issue. The Fourth, Sev­enth, and Ninth Cir­cuits hold that an offi­cer need not estab­lish prob­a­ble cause for each ele­ment of an offense, while the Third, Sixth, Eighth, and D.C. Cir­cuits hold that prob­a­ble cause must extend to every ele­ment of an offense.14 One of the ear­li­est cas­es to adopt the under­stand­ing of prob­a­ble cause as not requir­ing prob­a­ble cause for every ele­ment, Unit­ed States v. Sevi­er, focused on the idea that prob­a­ble cause should be prac­ti­cal and non­tech­ni­cal.15 But as the Eighth Cir­cuit said, “[f]or prob­a­ble cause to exist, there must be prob­a­ble cause for all ele­ments of the crime, includ­ing mens rea.”16

By its very nature, the total­i­ty of the cir­cum­stances test requires an offi­cer to con­sid­er all cir­cum­stances relat­ed to a pos­si­ble crime. A num­ber of the cir­cuit courts have empha­sized that law enforce­ment can­not ignore or dis­re­gard excul­pa­to­ry facts in their prob­a­ble cause analy­sis.17 Nec­es­sar­i­ly, the total­i­ty of the cir­cum­stances analy­sis, while pro­vid­ing that law enforce­ment offi­cers can look at the entire­ty of the cir­cum­stances sur­round­ing the alleged crime, also requires that they con­sid­er facts tend­ing to dis­si­pate prob­a­ble cause.18 To hold oth­er­wise would ren­der prob­a­ble cause analy­sis a nul­li­ty, because offi­cers could claim prob­a­ble cause despite sig­nif­i­cant facts to the con­trary.

It is a nec­es­sary aspect of the total­i­ty of the cir­cum­stances analy­sis that “police offi­cers may not ignore eas­i­ly acces­si­ble evi­dence and there­by del­e­gate their duty to inves­ti­gate and make an inde­pen­dent prob­a­ble cause deter­mi­na­tion based on that inves­ti­ga­tion.”19 The prob­a­ble cause inquiry “requires offi­cers to rea­son­ably inter­view wit­ness­es read­i­ly avail­able at the scene, inves­ti­gate basic evi­dence, or oth­er­wise inquire if a crime has been com­mit­ted at all before invok­ing the pow­er of a war­rant­less arrest and deten­tion.”20 Fail­ure to inves­ti­gate excul­pa­to­ry or oth­er infor­ma­tion pri­or to arrest can pre­vent the estab­lish­ment of prob­a­ble cause.21

In BeVi­er v. Hucal, the Sev­enth Cir­cuit held that an arrest was not valid with­out evi­dence of the req­ui­site mens rea and that an officer’s deci­sion to ignore infor­ma­tion tend­ing to negate mens rea opened him up to a valid § 1983 claim.22 The Sev­enth Cir­cuit does not require prob­a­ble cause of every ele­ment of the crime23 yet still pro­hibits offi­cers from ignor­ing excul­pa­to­ry evi­dence on the sub­ject of mens rea. And cir­cuits on both sides of the split agree that it is in keep­ing with law enforcement’s duty to exam­ine the total­i­ty of the cir­cum­stances that offi­cers may not close their eyes to facts that would clar­i­fy the cir­cum­stances of an arrest, par­tic­u­lar­ly where it is unclear whether a crime had tak­en place or where fur­ther inves­ti­ga­tion may exon­er­ate the sus­pect.24 While law enforce­ment need not have proof beyond a rea­son­able doubt at the time of arrest, they must at least con­duct a rea­son­ably thor­ough inves­ti­ga­tion where there are no exi­gent cir­cum­stances26 or where min­i­mal, rea­son­able fur­ther inves­ti­ga­tion would shed light on the events.27 This log­ic demon­strates that the work­able solu­tion to ques­tions of mens rea at the moment of arrest is to return to a more robust under­stand­ing of the total­i­ty of the cir­cum­stances analy­sis that focus­es on the actu­al total­i­ty, both excul­pa­to­ry and incul­pa­to­ry.

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Advo­cates of not requir­ing prob­a­ble cause for mens rea argue that ask­ing offi­cers to look into the state of mind would frus­trate legit­i­mate law enforce­ment pur­pos­es.28 How­ev­er, under the prob­a­ble cause of mens rea stan­dard, offi­cers need not peer into sus­pects’ minds in order to ascer­tain their men­tal state at the time of a pos­si­ble crime. While offi­cers can­not know what a suspect’s exact state of mind is, they also may not ignore evi­dence sug­gest­ing a sus­pect lacks the req­ui­site mens rea. For most crimes, a guilty mens rea is what makes oth­er­wise inno­cent behav­ior into crim­i­nal action. With­out evi­dence of that mens rea, crim­i­nal sus­pects risk hav­ing their lives dis­rupt­ed by court pro­ceed­ings or pre-tri­al deten­tion despite hav­ing engaged in behav­ior not specif­i­cal­ly crim­i­nal­ized by the statute.

Evi­dence tend­ing to sup­port or negate the exis­tence of the req­ui­site mens rea is often read­i­ly avail­able at the time of arrest. As a start, crim­i­nal sus­pects may make state­ments either incul­pat­ing or excul­pat­ing them­selves. Yet offi­cers do not have to just take sus­pects at their words.29 As was the case in Mary­land v. Pringle, offi­cers make infer­ences about whether knowl­edge or intent exist­ed by, for exam­ple, look­ing at how vis­i­ble the illic­it sub­stances were or how obvi­ous the crim­i­nal behav­ior was.30 The key point here is that offi­cers must not only look at evi­dence that sup­ports the guilty mens rea; the total­i­ty of the cir­cum­stances analy­sis nec­es­sar­i­ly requires them to also exam­ine evi­dence tend­ing to negate mens rea, just as they must for any oth­er piece of excul­pa­to­ry or undis­put­ed infor­ma­tion.

In order to abide by this pro­posed stan­dard, law enforce­ment offi­cers do not need to con­duct an exhaus­tive inves­ti­ga­tion pri­or to arrest. Instead, effec­tive and con­sti­tu­tion­al law enforce­ment includes learn­ing “what eas­i­ly could have been learned, and in com­mon pru­dence should have been,”31 or per­form­ing min­i­mal inves­ti­ga­tion that “would have reduced any sus­pi­cion cre­at­ed by the facts police had dis­cov­ered.”32 Already, law enforce­ment offi­cers check the Vehi­cle Iden­ti­fi­ca­tion Num­ber of a car or ask its dri­ver for the vehicle’s reg­is­tra­tion papers pri­or to con­clud­ing that a car is stolen. It is not unrea­son­able to ask that an offi­cer sim­i­lar­ly ask sus­pects about the cir­cum­stances of the alleged crime or con­sid­er infor­ma­tion eas­i­ly pro­duced or read­i­ly avail­able at the scene that sheds light on a suspect’s state of mind. That basic lev­el of inquiry would sat­is­fy the pro­posed inquiry into the suspect’s mens rea.

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An under­stand­ing of the total­i­ty of the cir­cum­stances analy­sis that con­sid­ers both incul­pa­to­ry and excul­pa­to­ry infor­ma­tion with regards to the suspect’s mens rea and requires min­i­mal inves­ti­ga­tion in unclear cir­cum­stances bridges the gap between the inabil­i­ty of law enforce­ment offi­cers to read the minds of crim­i­nal sus­pects and the right of peo­ple to be free from unrea­son­able arrests. By doing so, it still allows law enforce­ment to do their jobs quick­ly and on the scene but pre­vents wrong­ful arrests and the many con­se­quences that can accom­pa­ny such unlaw­ful arrests. In the com­pro­mise between these impor­tant inter­ests, requir­ing law enforce­ment offi­cers to exam­ine the true total­i­ty of the cir­cum­stances strikes the right bal­ance.

Notes:

1. Kim­ber­ly La Fronz is a 3L at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on a prob­lem writ­ten for the 2017 Her­bert Wech­sler Nation­al Crim­i­nal Moot Court Com­pe­ti­tion at the Uni­ver­si­ty of Buf­fa­lo School of Law. The issue in the prob­lem cen­tered on whether law enforce­ment offi­cers must have prob­a­ble cause of the req­ui­site mens rea to effect an arrest and how much inves­ti­ga­tion offi­cers must do for that ele­ment of the crime. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author on this point. Rather, this arti­cle is a dis­til­la­tion of one side of an argu­ment assigned to the team.
2. Brine­gar v. Unit­ed States, 338 U.S. 160, 176 (1949) (The prob­a­ble cause require­ment of the Fourth Amend­ment is a com­pro­mise that “seek[s] to safe­guard cit­i­zens from rash and unrea­son­able inter­fer­ences with pri­va­cy and from unfound­ed charges of crime. [It] also seek[s] to give fair lee­way for enforc­ing the law in the community’s pro­tec­tion.”).
3. Mary­land v. Pringle, 540 U.S. 366, 371 (2003) (“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.”).
4. Corbin Hous­ton, Prob­a­ble Cause Means Prob­a­ble Cause: Why the Cir­cuit Courts Should Uni­form­ly Require Offi­cers to Estab­lish Prob­a­ble Cause for Every Ele­ment of an Offense, 2016 Univ. of Chica­go Legal Forum 809, 809 (2016) (“While many of the nuances of prob­a­ble cause are set­tled law, there still remains much ambi­gu­i­ty sur­round­ing the doctrine’s appli­ca­tion by law enforce­ment in the area of war­rant­less arrests.”).
5. Wong Sun v. Unit­ed States, 371 U.S. 471, 479 (1963) (“Whether or not the require­ments of reli­a­bil­i­ty and par­tic­u­lar­i­ty of the infor­ma­tion on which an offi­cer may act are more strin­gent where an arrest war­rant is absent, they sure­ly can­not be less strin­gent than where an arrest war­rant is obtained.”).
6. Beck v. Ohio, 379 U.S. 89, 96 (1964).
7. See Illi­nois v. Gates, 462 U.S 213, 230–31 (1983).
8. Id. at 230.
9. Unit­ed States v. Di Re, 332 U.S. 581, 592 (1948).
10. Id. (“at the time of the arrest the offi­cers had no infor­ma­tion impli­cat­ing Di Re and no infor­ma­tion point­ing to pos­ses­sion of any coupons, unless his pres­ence in the car war­rant­ed that infer­ence. Of course they had no infor­ma­tion hint­ing fur­ther at the knowl­edge and intent required as ele­ments of the felony under the statute.”).
11. Mary­land v. Pringle, 540 U.S. 366, 373 (2003) (“Here we think it was rea­son­able for the offi­cer to infer a com­mon enter­prise among three men. The quan­ti­ty of drugs and cash in the car indi­cat­ed the like­li­hood of drug deal­ing, an enter­prise to which a deal­er would be unlike­ly to admit an inno­cent per­son with the poten­tial to fur­nish evi­dence against him.”).
12. Adams v. Williams, 407 U.S. 143, 149 (1972) (“Prob­a­ble cause does not require the same type of spe­cif­ic evi­dence of each ele­ment of the offense as would be need­ed to sup­port a con­vic­tion.”).
13. See Hous­ton, supra note 4, at 809; Cil­man v. Reeves, 452 F. App’x 263, 270–71 (4th Cir. 2011); Spiegel v. Cortese, 196 F.3d 717, 724 n.1 (7th Cir. 1999); Gasho v. Unit­ed States, 39 F.3d 1420, 1428 (9th Cir. 1994).
14. See Hous­ton, supra note 4, at 809–10; Williams v. City of Alexan­der, 772 F.3d 1307, 1312 (8th Cir. 2014); Wes­by v. Dis­trict of Colum­bia, 765 F.3d 13, 20 (D.C. Cir. 2014); Unit­ed States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013); Thack­er v. City of Colum­bus, 328 F.3d 244, 256 (6th Cir. 2003).
15. Unit­ed States v. Sevi­er, 539 F.2d 599, 603 (6th Cir. 1976) (cit­ing Beck v. Ohio, 379 U.S. 89 (1964)). See also Hous­ton, supra note 4, at 814 (“The Sevi­er court like­ly seized on Beck’s lan­guage that ‘the rule of prob­a­ble cause is a prac­ti­cal, non­tech­ni­cal con­cep­tion afford­ing the best com­pro­mise that has been found for accommodating…often oppos­ing inter­ests.’”).
16. Williams, 772 F.3d at 1312.
17. See, e.g., Big­ford v. Tay­lor, 834 F.2d 1213, 1218 (5th Cir. 1988) (offi­cers “may not dis­re­gard facts tend­ing to dis­si­pate prob­a­ble cause”); BeVi­er v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (“The con­tin­u­a­tion of even a law­ful arrest vio­lates the Fourth Amend­ment when police dis­cov­er addi­tion­al facts dis­si­pat­ing their ear­li­er prob­a­ble cause”); Kuehl v. Bur­tis, 173 F.3d 646, 650 (8th Cir. 1999) (“An offi­cer con­tem­plat­ing an arrest is not free to dis­re­gard plain­ly excul­pa­to­ry evi­dence”); Bap­tiste v. J.C. Pen­ney Co., 147 F.3d 1252, 1259 (10th Cir. 1998) (offi­cers “may not ignore avail­able and undis­put­ed facts”).
18. Big­ford, 834 F.2d at 1218 (“As a corollary…of the rule that the police may rely on the total­i­ty of facts avail­able to them in estab­lish­ing prob­a­ble cause, they also may not dis­re­gard facts tend­ing to dis­si­pate prob­a­ble cause.”).
19. Bap­tiste, 147 F.3d at 1259.
20. Romero v. Fay, 45 F.3d 1472, 1476–77 (10th Cir. 1995).
21. See, e.g., Unit­ed States v. Ramirez-Rivera, 800 F.3d 1, 28 (1st Cir. 2015) (fail­ure to attempt to cor­rob­o­rate informant’s tip viti­at­ed prob­a­ble cause); Sevi­gny v. Dick­sey, 846 F.2d 953, 958 (4th Cir. 1988) (fail­ure to learn what eas­i­ly could have been learned viti­at­ed prob­a­ble cause); Big­ford, 834 F.2d at 1218 (fail­ure to com­plete min­i­mal inves­ti­ga­tion viti­at­ed prob­a­ble cause); BeVi­er, 806 F.2d at 128 (fail­ure to pur­sue rea­son­able avenues of inves­ti­ga­tion viti­at­ed prob­a­ble cause); Kuehl, 173 F.3d at 650 (fail­ure to con­duct a rea­son­ably thor­ough inves­ti­ga­tion viti­at­ed prob­a­ble cause).
22. 806 F.2d at 128 (“Because this infor­ma­tion [about the child’s con­di­tion and par­ents’ behav­ior] could have been eas­i­ly obtained and was nec­es­sary before con­clud­ing that Robert and Annette had inten­tion­al­ly neglect­ed their chil­dren, Hucal was unrea­son­able in not mak­ing those inquiries.”).
23. Spiegel v. Cortese, 196 F.3d 717, 724 n.1 (7th Cir. 1999).
24. See, e.g., BeVi­er, 806 F.2d at 128 (“A police offi­cer may not close her or his eyes to facts that would help clar­i­fy the cir­cum­stances of an arrest. Rea­son­able avenues of inves­ti­ga­tion must be pur­sued espe­cial­ly when, as here, it is unclear whether a crime had even tak­en place.”); Kuehl, 173 F.3d at 650 (cit­ing BeVi­er, 806 F.2d at 128).
25. Brine­gar v. Unit­ed States, 338 U.S. 160, 174 (1949) (“If those [guilt beyond a rea­son­able doubt] stan­dards were to be made applic­a­ble in deter­min­ing prob­a­ble cause for an arrest or for search and seizure…few indeed would be the sit­u­a­tions in which an officer…could take effec­tive action.”).
26. Kuehl, 173 F.3d at 650 (“law enforce­ment offi­cers have a duty to con­duct a rea­son­ably thor­ough inves­ti­ga­tion pri­or to arrest­ing a sus­pect, at least in the absence of exi­gent cir­cum­stances.”).
27. Id. (“prob­a­ble cause does not exist when a ‘min­i­mal fur­ther inves­ti­ga­tion’ would have exon­er­at­ed the sus­pect.”).
28. Hous­ton, supra note 4, at 830 (“A major rea­son for the devel­op­ment of the some-ele­ments approach was the view that requir­ing prob­a­ble cause for each ele­ment would frus­trate law enforce­ment even when con­duct­ing war­rant­ed search­es.”).
29. Criss v. Kent, 867 F.2d 259, 263 (6th Cir. 1988) (“A police­man, how­ev­er, is under no oblig­a­tion to give any cre­dence to a suspect’s sto­ry.”).
30. Mary­land v. Pringle, 540 U.S. 366, 372 (2003) (where Pringle was one of three men in the car at 3:16 am, there was $763 of rolled-up cash in the glove com­part­ment direct­ly in front of Pringle, there were five bag­gies of cocaine acces­si­ble to all three men, and the three men failed to offer any infor­ma­tion about the own­er­ship of the cocaine or mon­ey, “[w]e think it an entire­ly rea­son­able infer­ence from these facts that any or all three of the occu­pants had knowl­edge of, and exer­cised domin­ion and con­trol over, the cocaine.”).
31. Sevi­gny v. Dick­sey, 846 F.2d 953, 958 (4th Cir. 1988).
32. Big­ford v. Tay­lor, 834 F.2d 1213, 1219 (5th Cir. 1988).