Probable Cause to Arrest by Darren Chaker

Darren Chaker article on consent to search

The standard to arrest is probable cause. Darren Chaker recites recent cases discussing the fundamentals to support an arrest. Too often police attempt to bully there way into having a suspect giving consent to search his or her car, house, backpack, etc. Threatened with arrest the suspect gives consent and the officer will often leave out of the report the suspect was bullied into giving it. With the advent of police cameras these issues are not as prevalent, however as we each see all too often, some police officers are incapable of containing themselves even when they know they are being recorded.

Darren Chaker recites a few cases to illustrate when police can actually arrest a suspect:  

  • “In California, ‘an officer has probable cause for a warrantless arrest ‘if the facts known to him would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”’[Citations.]”  (Blakenhorn v. City of Orange (9th 2007) 485 F.3  463, 471; see also People v. Price (1991) 1 Cal.4 324, 410.)
  • “Probable cause” merely requires that “the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [plaintiff] had committed or was committing an offense. . . . Police must only show that, under the totality of the circumstances, . . . a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime.”  (Hart v. Parks (9  Cir. 2006) 450 F.3 1065-1066.)
  • “Probable cause to arrests exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of caution to believe that an offense has been or is being committed by the person being arrested.”  (Citations omitted; Ewing v. City of Stockton (9  Cir. 2009) 588 F.3rd 1065, 1069.)
  • “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested. (Citation)  For information to amount to probable cause, it does not have to be conclusive of guilt, and it does not have to exclude the possibility of innocence. . . . (Citation)  . . . (P)olice are not required ‘to believe to an absolute certainty, or by clear and convincing evidence, or even by a preponderance of the available evidence’ that a suspect has committed a crime. (Citation)  All that is required is a ‘fair probability,’ given the totality of the evidence, that such is the case.  (Garcia v. County of Merced (9th Cir. 2011) 639 F.3rd 1206, 1209.)
  • Avoidance of eye contact – a common “suspicious factor” cited by police against Hispanics – is meaningless. ( People v. Valenzuela (1994) 28 Cal.App.4th 817, 828 [“Failure to meet the border agent’s gaze, and kneading of the steering wheel, even if indicative of nervousness, does not provide a sufficient reason to suspect defendant was…doing anything…illegal”]; United States v. Garcia-Camacho (9th Cir.1995) 53 F.3d 244, 247; United States v. Rodriguez (9th Cir. 1992) 976 F.2d 592, 596; United States v. Hernandez-Alvarado (9th Cir.1989) 891 F.2d 1414, 1419; Nicacio v. INS (9th Cir.1986) 797 F.2d 700, 704; United States v. Lamas (5th Cir.1979) 608 F.2d 547, 549-550; United States v. Lopez (5th Cir. 1977) 564 F.2d 710, 712.)

Although there are dozens of more examples, one thing is clear: do not get bullied into giving consent to search. Stand your ground, be respectful to police, and assert your rights.  

Written by 

Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.