By Terrence Alladin
In the past weeks, probable cause has lost all meaning.
The Fourth Amendment of the Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
While the Constitution does protect against arbitrary arrest, it does not specifically define what is meant by “probable cause.”
That definition comes from the Supreme Court ruling Brinegar v. United States which states, “Where the facts and circumstances within the officers’ knowledge, and 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.”
Further, Black’s Law Dictionary defines probable cause as “as the facts and evidence that lead many to believe that the accused committed a crime.” It only provides grounds to allege the commission of a crime and thus the accused can be arrested.
In sum, probable cause to make an arrest exists when an officer has knowledge of such facts as would lead a person to believe that a person has committed, is committing, or about to commit a crime. Any person, regardless of socio-economic status, profession, political affiliation, race, gender, religion or other characteristic, can be arrested when law enforcement has reason to believe the person was involved in the commission of a crime.
The next question then is: What is a crime?
A crime is any act or omission that violates a public law and can result in punishment. Depending on the act or omission, a person can be committing a federal, state or local crime.
Nowhere in the Constitution or any other document laying out the proceedings for arrest in the event of probable cause does it specify that law enforcement officers themselves are exempt from these proceedings.
Law enforcement in some states are beginning to understand this reality and are acting upon it. The officers involved in the killing of George Floyd in Minneapolis in May were all finally arrested earlier this month. The officer who shot and killed Rayshard Brooks has been charged with murder.
Officer Derek Chauvin had already restrained Floyd, and was therefore not acting within the constraints of the City of Minneapolis Police Department Manual section 5-311, which permits neck restraints only when the officer is trying to get control of an individual who is “actively resisting” or “exhibiting active aggression” towards the officer.
As such, kneeling on the neck of a person who is already restrained, in excess of eight minutes, is without debate a crime. Moreover, it was not only an unlawful act, but it was a particularly brutal act that saw Floyd begging and pleading for assistance until his final breath.
Officer Garret Rolfe, who has surrendered to face charges in Brooks’ death, appears to have violated Atlanta Police Department policy regarding the use of deadly force.
His actions also fail to comport with the Supreme Court’s findings in Tennessee v. Garner as to when an officer may appropriately use deadly force against a fleeing suspect.
A reasonable person reviewing these facts is left to believe that shooting a fleeing suspect in the back that presents no lethal threat to the officer or the public is not only an unreasonable use of force but, more importantly, a crime.
But it took days and weeks for charges to be brought and arrests to be made in the killings of both Floyd and Brooks. Police officers are treated differently by prosecutors as a result of their occupation.
Everyday citizens, on the other hand, are arrested and charged for crimes based on probable cause. Some of those arrested and charged are found innocent, charges are dropped and others are convicted. Some are killed before they can stand trial.
There should be no difference in the application of probable cause as a result of a persons’ socio-economic status, profession, political affiliation, race, gender, religion or other characteristic. Equality and fairness in the criminal justice system cannot be achieved if laws are not applied equally to those charged with enforcing them.
Terrence Alladin is an assistant professor of criminal justice at Lebanon Valley College in Annville, Pa.