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Is probable cause required to arrest someone?

On Behalf of | Jul 5, 2024 | Criminal Defense |

Before a law enforcement officer can arrest a possible suspect, they must have reason to do so. The officer does not have to be 100% sure that the alleged suspect committed a crime. However, for New Jersey law enforcement to obtain a warrant for an arrest, the officer will need to establish probable cause. Even for an arrest without a warrant, the arresting officer must prove to the court that they had probable cause to arrest the suspect.

Probable cause is more than reasonable suspicion

A gut feeling or mere suspicion is not enough to establish probable cause, but the officer can establish probable cause without having to prove beyond a reasonable doubt that the suspect committed a crime.

An officer has probable cause to arrest a suspect if they have reason to believe, based on a “totality of the circumstances,” that the suspect committed a crime or was going to commit a crime. If there was probable cause to arrest the suspect, that arrest will be considered lawful even if the suspect is ultimately found not guilty or the charges against them are dropped.

There are generally four types of evidence used to establish probable cause:

  • Observations: What law enforcement sees, smells and hears.
  • Circumstantial: The officer considers several facts together and establishes that a crime was likely committed, even without direct evidence of the crime. Circumstantial evidence may not be enough on its own to establish probable cause.
  • Expertise: The officer uses their expertise to collect evidence of the crime (e.g., an officer who has experience dealing with gangs may be able to identify gang graffiti).
  • Information: The officer discovered information about a crime from an informant.

If an officer arrests a suspect without probable cause, the arrest will likely be found to be unlawful, and the suspect may be released.

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