What can I do if I feel a police officer is harrassing my family?
Probable cause is the level of evidence held by a rational and objective observer necessary to justify logically accusing a specific suspect of a particular crime based upon reliable objective facts. For example, a police officer may claim there is probable cause for attempted theft when someone is found trespassing on private property late at night wearing a stocking mask, in order to justify stopping and searching the person for possession of criminal tools.
It is incumbent upon law enforcement officials to make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention, and the standards for evaluating the factual basis supporting a probable cause assessment are not less stringent in a warrantless arrest situation than in a case where a warrant is sought from a judicial officer. The probable cause determination for a warrantless arrest is based upon the information possessed by the officer at the time of the arrest and not by later acquired information.; Probable cause involves probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent persons act.; It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.
If probable cause existed at the time of the arrest, the fact that investigation proves the person arrested to be innocent does not make the arrest unjustifiable.
In determining probable cause, all the information in the officer's possession, fair inferences from this information, and observations made by the officer, are generally pertinent. In determining the existence of probable cause, facts may be taken into consideration that would not be admissible on the issue of guilt.
Pursuant to the Fourth Amendment, prompt judicial determination of probable cause is required as a prerequisite to extended restraint of liberty following arrest. A judicial determination of probable cause after a warrantless arrest must be made as soon as reasonably possible, but generally no later than forty-eight hours after arrest.
In one case, the officer was entitled to qualified immunity for arresting a motorist for driving under the influence of alcohol. The motorist's bloodshot eyes, slurred speech, and other facts known to the officer, as well as the motorist's failing of a field sobriety test, provided the officer with probable cause to make the arrest. The court also held that the officer did not violate the motorist's due process rights by failing to honor the motorist's request to take a blood or urine test to establish his purported innocence and avoid a license suspension. Christman v. Pietrzak, No. 08-11493, 2008 U.S. App. Lexis 21733 (11th Cir.).
Entrapment is a legal doctrine known as an affirmative defense. It must be proven by a preponderance of evidence and it generally is only available in criminal cases. Courts have held that the entrapment defense is available only to one who has been induced or lured by the law enforcement officer for the purpose of prosecution and into the commission of a crime which he otherwise had no intention of committing. Entrapment does not result merely because officers created a situation which made it possible for the defendant to commit the crime. In order to be found to be a victim of entrapment, the entrapped person must have been willing and willing to commit the crime prior to the alleged entrapment. The mere providing of an opportunity to commit a crime is not entrapment. In order to find entrapment, there must be persuasion or inducement to commit a crime by the entrapping party.
Entrapment occurs if the conduct of the investigating officers or their agents in dealing with the defendant would “likely” have induced a normally law-abiding person to commit the crime with which the defendant was charged. Entrapment does not result merely because officers created a situation which made it possible for the defendant to commit the crime. This is because it is presumed that a normally law-abiding person would resist the temptation to commit a crime if officers did nothing more than give him an opportunity to do so.
The defense known as “outrageous police conduct” is similar to the entrapment defense in that both are based on police misconduct and both will result in an acquittal if proven. Unlike entrapment, however, the “outrageous police conduct” defense is a very vague and broad defense with no strict requirements and no accepted definition.
For example, in Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal. 4th 561 [28 Cal. Rptr. 2d 638], the defendants claimed that the use of minor decoys to purchase liquor constituted outrageous police conduct. The court responded, “[I]t is doubtful the Constitution may be construed as forbidding the use of minor decoys. Assuming such a violation occurred, it was at most a technical one that could not be deemed so ‘outrageous’ as to afford a defense to prosecution.”