By H. Michael Steinberg Colorado Criminal Defense Lawyer – 2025
After 42 years of practicing Colorado criminal law – I am still surprised at how the phrase “I know my rights!” is, many times, untrue. One key right under the Colorado and United States constitutions, and one that every citizen should try to understand, is this: before law enforcement can deprive you of your freedom – before they can lawfully arrest you, that arrest must be based on “probable cause.”
The Fourth Amendment to the United States Constitution does not specifically define probable cause however a decision by the U.S. Supreme Court in 1949 provides the most cited test for probable cause that:
“Probable cause exists 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 of reasonable caution that a crime is being committed.”
This article takes a close look at probable cause and the right to be free from an illegal arrest.
The phrase itself – “probable cause” – is confusing and unfamiliar to most people. One may recognize the phrase immediately – but understanding it – translating the words with meaning in real life, is nearly impossible. On the other hand the consequences of an illegal arrest NOT based upon probable cause are very real at many levels.
Understanding the nature of – or more precisely, the “quantum of evidence” defined as probable cause when the police are targeting you for arrest can mean the difference between successfully defending against a life changing criminal case and the devastating result of a criminal prosecution.
Probable Cause: A Closer Look At One Of The Most Basic And Important Concepts In Criminal Law
Probable cause is the gold standard by which law enforcement officers and the courts assess whether there is sufficient reason to believe that a person has committed a crime. It plays a crucial role in ensuring a balance between individual rights and the public interest in crime prevention and justice.
Probable cause remains one of the most important and fundamental legal concepts that exists in criminal law. It is at the core of our criminal justice system. Probable cause is the yardstick against which police and prosecutors measure whether they had a legitimate and lawful basis for believing that a person actually committed a crime and then, acting on that quantum of evidence, physically seize and search that person taking away that person’s dignity, freedom, and right to be left in peace by arresting that person.
Probable cause is not only at the heart of criminal investigations, it can form the basis for a direct challenge – a direct constitutional attack on the strengths and weaknesses of the State’s case in the judicial court proceedings that follow.
The “doctrine of probable cause” is defined in both statutory and case law – and both sources provide what can sometimes be a complex framework that guides and also challenges both the police and the courts to “get it right.”
What Then Is Probable Cause?
The Fourth Amendment of the United States Constitution guarantees individuals the right to be protected from unreasonable searches and seizures. It further states that a search warrant can only be granted when there is probable cause.
The Constitution, however, does not define probable cause, leaving its interpretation to the Courts. The United States Supreme Court has stated that the term “seizure” in the Fourth Amendment to include both the collection of evidence and the detention of an individual, such as in an arrest.
The Court has applied the concept of probable cause to the following situations:
Conducting searches
Executing seizures
Making arrests with and without a warrant
The Supreme Court has established that probable cause for an arrest is present when an officer is aware of facts that would lead a reasonable person to think that someone is engaging in, has engaged in, or is about to engage in an illegal activity.
The officer must be able to explain – articulate – the facts and conditions that form the basis for this probable cause.
Probable Cause Is About Facts – It Is Not A Mere Suspicion Or A Hunch
An officer’s hunch is insufficient to establish reasonable suspicion to believe criminal activity may be afoot and reasonable suspicion is a less demanding standard than probable cause… Because probable cause is measured against an objective standard of reasonableness, it cannot be established “simply by piling hunch upon hunch.”
Before law enforcement can make an arrest, obtain a search warrant, or conduct a warrantless search and/or seizure, the facts underlying those actions must equal probable cause.
Probable cause is the culmination of multiple layers of information which can include an integration of a police officer’s knowledge, observations, and what information and facts taken from all other sources.
The facts leading to a finding of probable cause must fall within the realm of what a reasonably prudent person would believe given the known circumstances. Probable cause is a standard that is deliberately flexible, permitting the police to make decisions in the field while also being subject to rigorous scrutiny later by the courts to guard against overreach.
As the reader will note – even after all of the above, the concept of probable cause remains vague and difficult to define. It can be very challenging to the Courts to determine when probable cause exists or does not exist since Courts are reluctant to link it to a specific numerical probability.
The Colorado Supreme Court In 2022 – ExploringThe Modern Concept Of Probable Cause in People v. Smith 511 P.3d 647 (2022)
Each day determining “probable cause” in the courts of Colorado involves law enforcement evaluating probable cause by filtering the concept through the “totality of the circumstances.” – that is ALL of the facts in a given case. The totality of the circumstances is an analysis that considers all available information that could influence a finding of probable cause decision never relying on any single piece of evidence.
In the 2022 Colorado Supreme Court case of People v. Smith, the Chief Justice of Colorado – Carlos Samour provided this helpful analysis of what probable cause IS and IS NOT. The following analysis by the Colorado Supreme Court provides a snapshot for analyzing a challenge to police officers’s assertion that he or she had probable cause to make an arrest::
The Fourth Amendment to the United States Constitution contains two requirements:
(1) all searches and seizures must be reasonable; and
(2) a warrant may issue only if “probable cause is properly established and the scope of the authorized search is set out with particularity.”
Colorado’s Fourth Amendment counterpart also prohibits:
(1) unreasonable searches and seizures and
(2) search warrants that either fail to establish probable cause or lack particularity.
Colo. Const. art. 2, § 7.A search conducted without a warrant is presumptively unreasonable and thus is in contravention of the Fourth Amendment. The prosecution shoulders the burden of showing that a warrantless search falls within a recognized exception to the warrant.
Probable cause is subject to a reasonableness standard and cannot be established by stacking hunch upon hunch. Nor is it proper to disregard facts that militate against a finding of probable cause. Looking at the facts of each case in their totality — (the analysis requires) not only those supporting probable cause but also those cutting against it…
The [Colorado Supreme Court] has consistently emphasized that probable cause does not require absolute certainty or proof beyond a reasonable doubt, but rather a reasonable belief based on factual evidence.
Reasonable Caution
A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.
Not Divide and Conquer
[C]ourts may not engage in a ‘divide-and-conquer’ analysis of facts” to ascertain whether there was probable cause. Rather, in analyzing probable cause, we must consider “the totality of the circumstances.” “[T]he totality of the circumstances test for probable cause is an ‘all-things-considered approach.’
Not Mathematical Precision
The probable cause standard does not lend itself to mathematical certainties and should not be laden with hyper-technical interpretations or rigid legal rules. Probable cause is based on factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act.
The Impact Of Alternative “Innocent Explanations” For Facts And Evidence – “Bad Facts”
A fact’s “worth” is not wholly eliminated by “a possible innocent explanation.”
Colorado’s courts and law enforcement agencies “frequently consider non-criminal and legally ambiguous conduct in probable cause analyses, and the possibility of an innocent justification merely affects a fact’s weight and persuasiveness, not its inclusion in the analysis.”
Even lawful circumstances, when considered together, may “lead to a legitimate inference of criminal activity.” Indeed, while certain facts, considered alone, may not amount to probable cause, “those same facts may support a finding of probable cause when considered in combination.”
But just as facts that are consistent with innocent behavior or have an innocent connotation may not be disregarded, neither may probable cause be established by ignoring facts that cut against it.
Courts must “look not only to the facts supporting probable cause, but also to those that militate against it.”
Does One Need To Understand ALL Of These Standards To Analyze Whether Probable Cause Existed At The Time Of The Arrest?
If you represent yourself, I am hopful the above information will assist you.
But it is typically your lawyer who has the responsibility to attack the State’s case . Your criminal defense lawyer is tasked to carefully analyze the facts of your case when law enforcement acts on what they believe is probable cause. Lawyers may use some or ALL of the above standards to persuade a Colorado Judge that the police officer(s) in your case did NOT have probable cause when they made the arrest in your case and therefore any search and seizure of the evidence in your case was unconstitutional.
Summary And Conclusion: What Exactly Is “Probable Cause” To Arrest Under Colorado Law? A Comprehensive Analysis
We know that in certain circumstances, such as Colorado domestic violence investigation, a law enforcement official is required to initiate an arrest if they have probable cause to believe that an act of domestic violence has been committed.
Lives can be irrevocably impacted by this decision and therefore an understanding of what exactly IS probable cause takes on enormous importance.
Under Colorado law, the idea of probable cause is clearly essential to the justice system, yet it presents numerous difficulties and debates that highlight its intricate nature. Probable cause is a pivotal standard allowing police to conduct searches and make arrests when there is a justified belief that a crime has occurred.
Nonetheless, deciding what qualifies as a ‘justified belief’ can be quite subjective, resulting in varied interpretations and potential misuse of authority.
Establishing probable cause depends significantly on actual evidence, not just on suspicion or speculation. Such evidence might comprise observations by police officers, details from credible informants, or any concrete proof indicating illegal actions. In essence, probable cause is assessed by reviewing the entire situation, with courts taking into account every piece of evidence and factor present at the moment of an arrest or search.
Officers must exercise sound judgment when determining if probable cause exists to preserve the integrity and lawfulness of their investigative processes and arrests. When they don’t, your criminal defense lawyer’s job is to correct that mistake and restore your freedoms.
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Colorado Criminal Law – What Exactly Is “Probable Cause” To Arrest Under Colorado Law? A Comprehensive Analysis
The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.
A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.
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Putting more than 40 years of Colorado criminal defense experience to work for you.
You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.
H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.