Any person who works in SC’s criminal courts or any person who has ever been charged with a crime has probably heard the phrase “probable cause.” But what is probable cause, exactly?

Probable cause is what the police need before they can search you or your car (but sometimes a “reasonable suspicion” is enough).

A judge must find probable cause that a person has committed a crime before they sign an arrest warrant. A judge must also find probable cause that evidence of a crime will be found before they sign a search warrant.

A grand jury must find probable cause that a crime has been committed before they “true bill” an indictment against a person, and if a judge does not find probable cause at a preliminary hearing the case gets dismissed…

So, what is probable cause?

What is Probable Cause?

Despite its importance and the many situations where probable cause can make the difference between a dismissal or prison, it is difficult to define. You may be able to look in ten different places and find ten different definitions…

Probable cause is required by the Constitution before an arrest is made or a search warrant is issued – but how is it defined?

• It’s a reasonable basis for believing that a crime has occurred, or evidence will be found;
• It’s “sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime;”
• “Probable cause to make an arrest exists when an officer has knowledge of such facts as would lead a reasonable person to believe that a particular individual is committing, has committed or is about to commit a criminal act;”
• “Probable cause to search for evidence or to seize evidence requires that an officer is possessed of sufficient facts and circumstances as would lead a reasonable person to believe that evidence or contraband relating to criminal activity will be found in the location to be searched;”
• Probable cause is something more than a reasonable suspicion but less than a preponderance of the evidence.

The facts that an officer relies on and communicates to the court for a probable cause determination must be reasonable, and they must come from a reliable source…

What is Probable Cause in a Drug Case in SC?

The facts giving rise to probable cause for SC drug charges are often unique compared to other types of criminal charges – the smell of marijuana, “nervousness” and inconsistent statements during a traffic stop, and statements of confidential informants are almost universal language in drug-related arrest warrant affidavits.

The Odor of Marijuana

The smell of marijuana may be the most common fact cited as probable cause in any drug case – and many other types of criminal charges.

The SC Supreme Court has held that, if police say that they smell marijuana, they have probable cause to search. (What do I mean, “if the police say they smell marijuana?” Check out this SC Supreme Court case where the Court upheld probable cause based on an officer’s claim that he smelled marijuana even though a drug dog did not alert and no marijuana was found in the car…)

If it’s during a traffic stop, there is no need to leave the scene and seek a warrant. Under the “automobile exception” to the Constitution’s search warrant requirement, police can search a vehicle without getting a warrant if there is probable cause, and then the court can review the officer’s decision later.

If police smell marijuana coming from a residence, hotel room, or other location, that is usually enough probable cause for a judge to sign a search warrant for the premises (depending on the facts – are there other possible sources of the odor, how much time has gone by since the odor was detected, are there other circumstances that would tend to show probable cause or that would negate probable cause…).

If police then search a vehicle or residence, any other crimes or evidence that they see is fair game under the “plain view exception” to the Constitution’s search warrant requirement. That can then lead to other criminal charges, even if they are unrelated to the smell of marijuana and even if no marijuana is found…

Undercover Drug Stings and Confidential Informants

Although informants also play a central role in many other types of cases (murder, armed robbery, burglary), they are essential in drug investigations.

Often, people who are charged with drug crimes, or about to be charged with drug crimes, will agree to help narcotics officers make new cases in exchange for a promise of leniency (many of these people would have been better off if they had called a defense lawyer first, but that’s another story).

In a typical drug sting, the defendant-turned-confidential-informant will purchase drugs from someone they know, record the transaction on audio or video, and then meet with agents who will search them and retrieve any drugs purchased.

Agents will often make two or more controlled buys using informants and then seek an arrest warrant for distribution and a search warrant for the residence or other location from a magistrate. When they execute the search warrant, they hope to find additional drugs or evidence of other crimes, adding possession with intent to distribute or drug trafficking charges to the warrants that the subject is now facing.

What is Probable Cause for a Search Warrant in SC?

Search warrants in drug investigations are often based on controlled buys by undercover informants (see above). But any reliable evidence that proves criminal activity is happening or evidence of a crime is present is enough for a judge to sign a search warrant.

If an officer presents evidence of probable cause to a magistrate but leaves out exculpatory information, the search warrant can later be challenged in court in what is called a Franks v. Delaware hearing. Similar, if an officer lies or exaggerates to get a search warrant, the warrant can later be challenged in court:

Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant’s request.

If a search warrant is invalidated, any evidence found during the execution of the search warrant should be excluded at trial as “fruit of the poisonous tree,” which necessarily results in the dismissal of some cases (it’s hard to get a conviction in a drug case when there are no drugs…).

Charleston, SC Drug Crimes Defense Lawyer

Grant B. Smaldone is a criminal defense attorney based in Charleston, SC whose law practice is focused on state and federal criminal cases in SC including drug trafficking, drug distribution, drug manufacturing, and drug possession charges.

If you’ve been charged with a drug offense in the Charleston or Myrtle Beach areas, call now at (843) 808-2100 or contact us through our website for a free consultation.