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Probable Cause Standard

A. Probable Cause & Exigency

Probable cause may be determined by a magistrate who issues a search or arrest warrant. A warrant may be issued by a magistrate who is not a lawyer, as long as the magistrate is independent of the police and prosecutor. In the alternative, when police are not able to obtain a warrant because of exigent circumstances, a determination of probable cause will be made by a magistrate after the search or seizure.

B. Totality of Circumstances

Probable cause is measured by a totality of the circumstances and does not require proof as high as a preponderance of the evidence. Probable cause to believe that a person has committed a crime is needed for an arrest; probable cause to believe that evidence of a particular crime is located in a particular place is needed for a search.

C. Probable Cause and Informants

The identity of a confidential informant does not have to be disclosed to a defendant who contests probable cause. When information from an informant is the basis for some or all of the evidence of probable cause, a court will inquire as to the veracity of the informant and the basis for his or conclusion that criminal activity is occurring.

1. Anonymous Informants
If an informant is anonymous, a substitute for unknown veracity may be corroborations of an informant’s predictions, and a substitute for basis may be self-verifying detail in a tip that refers to the future actions of third parties not readily predicted except by an informant privy to inside information.

a. Standard of Review
An appellate court should review a probable cause finding de novo.

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