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Probable Cause Versus Reasonable Cause: The Constitutional And Statutory Distinctions And Their Implications


probable cause versus reasonable cause, cpl 140.10, criminal appeals attorney

People v. Wharton

60 A.D.2d 291

Appellate Division, Second Department

Decided on: December 27, 1977

Comparing The Fourth Amendment’s Probable Cause With Criminal Procedure Law  140.10’s Reasonable Cause

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Attorney

Although this case is rather old, I chose to blog about it because I thought that it was instructive on the issue of probable cause being equated with reasonable cause here in New York State.  One recurring issue that comes up is whether the lack of probable cause or reasonable cause warrants only the suppression of physical evidence, and/or is it also grounds to dismiss charges pursuant to Criminal Procedure Law § 140.10. This case does not address that issue directly, but does a nice explanation of the two concepts and how they are treated in New York State.  Enjoy!

Issue: Whether police had reasonable cause to believe that Defendant had committed a crime, where the Officer’s noticed a blue plastic bag on the grass beside the parkway and found that the bag contained power tools, and they observed Defendant scoop it up, and run back into the cab.

Summary: Defendant appealed to the Appellate Division Second Department where he argues that the police did not have reasonable cause to believe that he had committed a crime when they frisked, handcuffed and arrested him. The sole testimony adduced in the course of the hearing was that of the two police officers who arrested the Defendant. They testified that they noticed a blue plastic bag on the grass. Upon examination, they found that the bag contained power tools. They believed the tools to be the product of a burglary and therefore, requested a stakeout. They watched a taxi cab drop Defendant off and witnessed Defendant who “ran to the bag, scooped it up, ran back to the cab and got in.”

The police testified that they did not know that the tools had been stolen when they arrested the Defendant, but that the area was known as a heavy burglary area. The Appellate Division for the Second Department stated that the requirement that probable cause must be present before a person can be arrested is guaranteed by the Constitution through the Fourth and Fourteenth Amendments and affirmed.

See Also: Meaningful Appellate Review: Where A District Court Makes A Decision Based On Discretion It Must Sufficiently Explain Why It Arrived At Its Conclusion To Allow For Meaningful Appellate Review

Holding:  The Appellate Division for the Second Department held that the police officers did not have reasonable cause to believe that Defendant had committed a crime when they frisked, handcuffed and arrested him without affording the Defendant and opportunity to explain his conduct.

Probable cause is equivalent to reasonable cause to believe that such person has committed such crime. A police officer may arrest and take into custody a person when he had probable cause to believe that person has committed a crime, or offense in his presence, CPL §140.10.

Facts: Police Officers noticed a blue plastic bag on grass and upon examination they found that the bag contained power tools. Believing that the tools were the product of a burglary, they requested help for a stake out, where, while the bag was under surveillance, a taxi cab drove up to the intersection, Defendant left the taxi, ran to the bag, scooped it up and ran back into the cab and got in. The Officers then, without affording the Defendant an opportunity to explain his conduct, arrested him for possession of stolen property.

The police testified that that they did not know that the tools had been stolen when they arrested the Defendant, but that the area was known as a heavy burglary area. The Appellate Division stated that the requirement that probable cause must be present before a person can be arrested is guaranteed by the Constitution through the Fourth and Fourteenth Amendments and found that the arresting officers did not have any reasonable cause to believe that Defendant had committed a crime.

Legal Analysis: The Appellate Division for the Second Department held that the requirement that probable cause must be present before a person can be arrested is guaranteed by the Constitution through the Fourth and Fourteenth Amendments.

Probable cause is equivalent to reasonable cause to believe that such person has committed such crime. It sets forth as a standard for making an arrest without a warrant, CPL §140.10. In People v. Valentine, 17 N.Y.2d 128, 132, 269 N.Y.S.2d 321, 323, the court stated that the standard of probable cause, as it applies to police, is that which would be probable cause to a reasonable, cautious and prudent police officer. Although probable cause requires less proof than is required for a conviction, it does not mean more than mere suspicion.

It is well settled that behavior, which is susceptible of innocent as well as culpable interpretation, does not constitute probable cause, People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352, N.E.2d 562. In evaluating the police action we must consider whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances, which rendered its initiation permissible, People v. Cantor, 36 N.Y.2d 106, 111, 365, N.Y.S.2d 509, 324 N.E.2d 872.

The De Bour Approach:

The Appellate Division held that they bear in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach, various police intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence.

The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality. The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure.

Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person, CPL 140.50, subd 1; Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d. 889; People v. Cantour, supra.

A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger or physical injury by virtue of the detainee being armed, CPL 140.50, subd. 3.

Finally, a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence, CPL 140.10.

This synopsis represents the gradation of permissible police authority with respect to encounters with citizens in public places and directly correlates the degree of objectively credible belief with the permissible scope of interference.

Applying this test to the facts in this case, the Appellate Division for the Second Department found that the arresting officer, based upon his own testimony, did not have reasonable cause to believe that the Defendant had committed a crime. For all her knew the Defendant may have been engaged in perfectly lawful activity. The police officers were unaware that a burglary had been committed. The Appellate Division held that that fact alone would not require suppression if probably cause to arrest had existed. The fact that the police officer’s hunch regarding the Defendant turned out to be correct cannot serve to establish the necessary, probable cause found in De Bour. The Appellate Division found that there was no immediate urgency for the police officers to arrest the Defendant. They could have stopped the Defendant and the cab driver, detained them, and subjected them both to reasonable inquiry.

The Appellate Division for the Second Department further concluded that to seize, frisk, handcuff and arrest an individual on the basis of the bare circumstances as in this case, including the absence of knowledge of the police officers as to the commission of any crime, without affording the Defendant an opportunity to explain his conduct, deprived him of his Constitutional right against unreasonable seizure and arrest. Accordingly, the Appellate Division for the Second Department affirmed.


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