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1.2: What is "Probable Cause"?




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This article is from the Lawful Arrest/Search/Seizure FAQ, by Ahimsa Dhamapada ahimsa@mu.clarityconnect.net with numerous contributions by others.

1.2: What is "Probable Cause"?


"The officer had *probable cause* to believe
that the person had violated a law."

(A strange phrase commonly heard on television,
seen in newspapers, and in law dictionaries and
college textbooks)

Probable cause is NOT a simple synonym for "reason",
yet this is how it is used most often.

Law dictionaries often define Probable Cause as

"A reasonable belief that a crime has been
committed."

While this is close, it is not adequate, as we will soon see...

If this *were* the definition, then the most common
usage wouldn't make sense! Make the replacement in the
above phrase:

"The officer had *a reasonable belief that a crime has been committed*
to believe that the person had violated a law."

Huh? Something is wrong here.

Now, if "probable cause" is simply "reason to believe a crime
has occurred", then it offers the people little protection
against harassment, given the number of obscure "laws"
on the books that the people are subject to. Such a
definition would give the police wide powers to detain
just about anybody for any reason at any time. Hmmm....

Also, there is a common misunderstanding as to the definition
of "crime". Many people think that a crime is a "violation
of the law", but this is a circular definition! Which came
first, law or crime? If crime is "things which the law
prohibits", and law is "that which is crime", we have
self-reference, a tautology, begging the question, a circular
reference. Anyone who has studied logic will tell you that
this has no meaning at all. (see any logic text, or:
http://www.wdv.com/Writings/Stories/TheRules/fallacy.html)

The Founding Fathers wrote *probable cause* and not
"reason to believe that a violation of the law occurred",
because they were *defining* the law! They obviously meant
something different.

We must all *begin* with an agreement of what is a crime
BEFORE we codify the Law, or else we end up with a meaningless
law that refers to itself, corruption of the courts, legislature,
and the police, and people going to jail for absurd things like
"possessing forbidden flowers", "not having proper paperwork",
"having a bad opinion about the court" or "talking about doing
something really nasty". (Wait! That IS what we have today...)

So, let's come up with a USEFUL definition of crime:

The body of a crime (Corpus Delicti) must have 2 components [from Gifis]:

1: An injury
2: A criminal cause

A crime is an injury caused by criminal agency (not
an accident or act-of-god). You can injure someone
accidentally: not a crime. Someone can get hurt from a
falling meteorite: not a crime. Someone causes an injury
intentionally: *this* is true crime.

Now replace this in the dictionary definition, and we have
the following:

PROBABLE CAUSE *IS*:
"REASON TO BELIEVE THAT AN *INJURY HAD CRIMINAL CAUSE*"

So if a civilian makes a complaint, and a body of the people such
as the Grand Jury, can reasonably assert:

"The accused PROBABLY CAUSED the injury to the victim",

then we have met the Constitutional requirement, and the
origin of the phrase becomes clear. (It could alternately
be interpreted as "Probable Cause of Action", but it is
no different, since a "cause" is a claim, and a claim requires
a right, an injury, and a petition for restitution)

Finally! Now that we know what *probable cause* really is,
now we can define what is required to show or determine
probable cause:

PROBABLE CAUSE *REQUIRES*:
"CERTAIN FACTS LINKING THE ACCUSED WITH THE VICTIM'S INJURY".

There is really more to it than this; for example, certain
human-caused injury may be simple accident, thus it should
be shown that the injury was intentional and malicious.

But here is the *really* important thing to remember:

If there is NO VICTIM, or the "victim" has suffered NO
INJURY, there can be NO PROBABLE CAUSE. Most police
detainments in the United States these days begin as
traffic "offences" (there is no offended party):
speeding, safety checks, no seat belt, expired tags, etc.
In the absence of any injury, these all lack Probable
Cause, and are thus, unConstitutional.

Think: "He PROBABLY CAUSED the Injury to the Victim".

 

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